Champlain Const. Co. v. O'Brien

• Decision Date: 19 November 1900
• Citation: 104 F. 930
• Court: U.S. District Court — District of Vermont
• Parties: CHAMPLAIN CONST. CO. v. O'BRIEN et al.

104 F. 930

CHAMPLAIN CONST. CO. v. O'BRIEN et al.

United States Circuit Court, D. Vermont.

November 19, 1900

F. H. &amp W. H. Button, for plaintiff.

T. W Maloney and F. M. Butler, for defendants.

WHEELER District Judge.

The plaintiff is building the Rutland-Canadian Railroad, and the defendants are contractors for doing the work, under a written contract, with specifications by which it was to be done by October 1, 1899. The contract provides:

'Third. It is further agreed that if at any time the progress of the work or the character of appliances and materials furnished is not such as, in the opinion of the company's chief engineer, will secure the completion of this contract within the time stipulated herein, or is not in accordance with the said specifications, then the company may serve written notice upon the contractors personally, or by leaving the same at their office, No. 233 Broadway in the city of New York, the contractors shall fail to furnish the company satisfactory evidence of their efforts, ability, and intentions to increase said progress or improve said materials, the company, if it so elect, may thereupon enter and take possession of the said work, or any part thereof, with the tools, materials, plant, and appurtenances thereon, and hold the same as security for any or all damages that may arise from the nonfulfillment of this contract within the time herein stipulated; and the company may use and employ said tools and other appurtenances and other proper means to complete the work at the expense of the contractors, and may deduct the cost thereof from any payment then due or that thereafter may become due to the contractors.'

The time for completing the work was, from time to time, extended to May 20, 1900, and the last contract of extension provided:

'Fourth. All rights of said company to take over the plant and other appliances of said contractors and complete the work provided in said contract shall be continued on the same conditions as contained herein for said time of extension, and for all time thereafter up to the final completion of said work, and no rights secured to the said company by the terms of said contract shall be in any manner waived by any of the provisions thereof.'

June 1, 1900, the company, by letter of its president to the defendants, specified several points where the number of men employed and the work and materials were not satisfactory, and June 14th inclosed to them a report of the chief engineer of the Rutland Railroad upon the state of the work, and said:

'I would call your attention to the clause in the contract and in the various supplemental contracts which provides that this shall be of the essence of the contract, and also for liquidated damages to the amount of $400 per day. The loss to our companies in not having this road to operate in connection with the Rutland system will, in my judgment, exceed this amount, and this company will insist upon all its rights in regard to damages under its contract, and will hold you for the amount of damages therein specified.'

July 20th the parties agreed in writing that, for an advance of $49,000, the plaintiff should 'have a lien upon all of the plant, appliances, and supplies of the party of the second part now engaged in or upon constructing said railroad, or which may hereafter be used in or upon the construction of said road, as security for any balance that may be due from said parties of the second part to said party of the first part on account of the constructing of said railroad under said contract and supplemental contracts on the final accounting between said parties'; and on September 19th they further contracted that:

'In consideration of the advance by said party of the first part of a sum sufficient to discharge said wages, it is mutually agreed between the parties hereto that said party of the first part shall have a lien upon all the plant, appliances, and supplies of said parties of the second part now employed in or upon the construction of said railroad, or which may hereafter be employed in or upon the construction of said railroad, as security for any and all sums which have been advanced or which may hereafter be advanced to said parties of the second part for work under said contract and supplemental contracts, and for whatever balance may be due from said parties of the second part to said party of the first part on a final settlement for all work under said contracts and in constructing said railroad. It is further agreed that the advance of said sum shall be in no wise prejudice or alter any rights which said party of the first part now has under said contract and supplemental contracts to take over said plant, appliances, and supplies, and complete said railroad, or to deduct its damages for noncompletion of same or any other rights which it may have under said contract or supplemental contracts.'

-- And thereupon $64,000 was advanced.

October 1st the president wrote again:

'I was over that part of the road between Burlington and Mooney cut on Saturday, and am very much disappointed at the progress of the work. There are not enough men on the line to finish the ballasting before winter, and the men who are working are not effective. I am surprised to see how little has been done in...