Chandler v. De Graff

• Decision Date: 29 March 1876
• Citation: 22 Minn. 471
• Parties: WILLIAM CHANDLER <I>vs.</I> CHARLES A. DE GRAFF & others.
• Court: Minnesota Supreme Court

22 Minn. 471

WILLIAM CHANDLER vs. CHARLES A. DE GRAFF & others.

Supreme Court of Minnesota.

March 29, 1876.

Action to recover $5,706.12, as the agreed price of 20,379 railroad ties furnished by the plaintiff to the defendants. At the trial in the district court for Hennepin county, before Vanderburgh, J., the facts appeared to be as follows: The defendants, partners as De Graff & Co., had entered into three written contracts with William G. Moorhead, construction agent of the St. Paul & Pacific Railroad Company, for constructing three separate lines of single-track railway of that company, and for furnishing all the materials therefor, except the rails, splices, bolts, frogs and switches, which were to be furnished by the other party to the contracts. The material provisions of these contracts are stated in the opinion. The defendants thereupon entered into written contracts with the plaintiff, by which the plaintiff agreed to furnish to the defendants, by one contract 100,000, by another 60,000, and by another 25,000 ties, to be delivered on the lines of railroad which defendants had undertaken to construct. Subsequently the defendants agreed to take, in addition, 39,240 ties, making in all 224,240 ties. The plaintiff got out and delivered, with the ties contracted for, and at the points mentioned for delivery in the contracts, 20,379 ties in excess of the number so contracted for, all the ties delivered being piled up together along the lines of road.

By the terms of the contracts between plaintiff and defendants it is provided that "said ties so furnished and delivered are to be examined, estimated and returned by the said railroad company on or about the 1st of each month, and 90 per cent. thereof is to be paid to said first party (the plaintiff) on or about the 20th of each month; provided, however, that said second party (the defendants) shall have received their pay for the same from said railroad company." By the terms of the contracts between defendants and Moorhead estimates of the work done and materials furnished were to be made on the 1st of each and every month by the engineer of the party of the second part (Moorhead, construction agent, etc.,) and payments therefor to be made on the 15th day of each month.

On April 22, 1872, the defendants and plaintiff had a settlement, and the defendants paid plaintiff in full for the 224,240 ties contracted for, and gave him an order on their agent for the 20,379 ties which he had delivered in excess of the contract. In the estimate of the previous month Moorhead had included the 20,379 ties delivered by plaintiff in excess of his contracts, and the defendants had been paid on the basis of this estimate, although it did not appear that they had ever in fact laid the surplus ties in track. There was a conflict in the evidence as to whether the plaintiff knew of this payment at the time he settled with defendants and received their order for the surplus ties. The roads contracted for had never been completed, payments to the defendants having stopped in June, 1872.

The jury found for plaintiff, a new trial was refused, and defendants appealed.

Gilman, Clough & Lane, for appellants.

E. C. Palmer, for respondent.

CORNELL, J.

If, at the time of the settlement between plaintiff and defendants, Moorhead, as construction agent, etc., had no right of property in the ties in controversy, nor any interest or lien thereon, under the contracts between him and the defendants, such as prevented the defendants from giving, and plaintiff from acquiring, an absolute title thereto under their agreement of settlement, it is difficult to see why the terms of such settlement are not conclusive upon plaintiff's right of recovery in this action; for if, under such settlement, the plaintiff in fact...