Chattahoochee Brick Co. v. Sullivan
| Decision Date | 17 October 1890 |
| Parties | CHATTAHOOCHEE BRICK CO. v. SULLIVAN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The charge on the subject of damages, complained of in the fifth ground of the motion for a new trial, was correct, and in view of the evidence was sufficiently definite and comprehensive.
2. In stating to the jury what the parties respectively insist upon, the court is to be understood as referring to their contention at the time of the trial as parties, and not to their evidence as witnesses. What the court states on this subject in the charge will be taken as correct unless the contrary appears.
3. The testimony furnished data upon which the jury could estimate the amount of damages resulting from lost time, at least the minimum if not the maximum amount of such damages.
4. Instructions to the jury, literally correct, as to admissions made in a written agreement of the parties, will not needlessly be construed as ruling on admissions elsewhere made in the pleadings or the evidence.
5. Where it did not appear from the declaration that certain items to which the evidence refers were embraced in a much larger round sum admitted in the declaration, and where the court charged with reference to these items upon the evidence alone, making no reference to the declaration, the attention of the court should have been called by counsel to the admission therein of the larger sum, and a suggestion made that it covered the controverted items, if such was the fact.
6. It was at most a mere irregularity to allow the written charge of the court to go out with the jury; and this not being objected to at the time, it is no cause for a new trial. Whether it is not the better practice in some cases, if not in all, qu re.
7. Where there is no evidence as to the character of witnesses a charge to consider the character of each witness is irrelevant; but an irrelevant charge not calculated to be more hurtful to one party than the other is generally no cause for a new trial. In this case there was no reference to the personal knowledge of the jurors; if there had been whether previous decisions as to that question ought to be overruled, qu re.
8. The court erred in charging the jury to look to the reasonable cost of the work on four miles of the railway as a measure of deduction from the agreed price to be paid the plaintiff permile, but, as the error could not have occasioned any excess in the verdict beyond one hundred dollars, the case need not be tried over if the plaintiff will write off that sum from the verdict together with the interest recovered on that much of the principal.
9. The newly-discovered evidence being cumulative, and due diligence as to some of it not having been exercised, it is no cause for a new trial.
Instructions to the jury which are literally correct, as to admissions made in a written agreement of the parties, will not be construed as ruling on admissions elsewhere made in the pleadings or the evidence.
The official report referred to in the opinion is substantially as follows:
The petition of Sullivan alleged, in brief, that in 1888 he contracted with the Chattahoochee Brick Company for the laying of 57 miles of railroad track, and surfacing the road-bed of the railroad, from Rome, Ga., to within 10 miles of Chattanooga, Tenn., for $300 per mile, the brick company agreeing to furnish all material needed for the work, and provide transportation for the same to the point of work; and agreed that, after March 1, 1888, the road-bed should be graded, and all the trestles built ready to receive the track as fast as petitioner would need it for laying track, from both ends of the 57 miles; that he prepared to execute his part of the contract at the time agreed upon, but the brick company failed to have the road-bed ready for him until about April 10, 1888; that nevertheless he entered upon the discharge of his duties under the contract, and after much delay and hinderance, caused by the failure of the company to carry out its obligations, he did, by June 25, 1888, complete the laying of the track as he had agreed to do, for which he was entitled to receive of it $17,100; that he performed other work and services for it at its special instance and request, consisting in building and putting in at different points on the railroad 95 cattle-guards, amounting to $1,187.50, excavations for these guards of the value of $119.70, grading highway road crossings, and grading and leveling road-beds in advance of track-laying, etc $1,169.30, and furnishing boat spikes, $32.80; that, in addition to this, the company failed to supply him with sufficient cross-ties to lay its track, and at its instance and request he laid rails upon 31 miles with fewer cross-ties than were required by the specifications, and afterwards, at its instance and request, put in other ties upon the 31 miles, at cost to him of $1,634.25. He further alleged that he was damaged by delays in the work, caused by failure of the company to have its road-bed ready, etc., at various times set out in his declaration from March 29, 1888, to June 21, 1888. So that the entire indebtedness of the company to him would amount to the sum of $24,051.89, except for certain credits to which it was entitled. These credits consisted of the following items: Cash paid by it to him, $9,142.51; for services of locomotive engineers and firemen, $960.50; for amount paid J. Cavender for cattle-guards, $750; amount paid J. D. Stevens for hauling cross-ties, $132.70; for timber and framing 13 cattle-guards, $95.25; for amount paid J. D. Beard on salary, $38.34,--the whole of the credits amounting to $11,119.30. During the progress of the trial, defendant admitted that it originally owed plaintiff for his work and expenditures, $19,634.95, and denied that it owed plaintiff the further sum of $4,297.35, claimed by him. Of the credits on this indebtedness claimed by defendant, plaintiff admitted $10,143.50; and denied further alleged credits claimed by defendant, amounting to $9,126.73. Upon the question as to how many miles the track of plaintiff covered, the testimony for plaintiff tended to show that it extended from a point 20 miles south of Chattanooga to Rome, a distance of 57 miles for which he was to be paid, under the contract, $300 per mile. In his testimony he stated that his average profit per mile was about $25. The four miles in dispute between the parties, plaintiff did no actual work upon, but this work was done by certain convicts under direction of defendant; but plaintiff claimed, and his testimony tended to show, that his contract covered the four miles, and that defendant was not released from its obligation to pay him, but was entitled to a credit for the convict labor. Upon this point the testimony for defendant tended to show that these four miles were not covered by plaintiff's contract, but the work upon them was done entirely by it, and they were not indebted to him anything with regard to it. Upon the subject as to when plaintiff should begin work under the contract, and had the right to expect the road-bed to be in such condition as to enable him to proceed with his work uninterruptedly, there was direct conflict. The evidence for the plaintiff tended to show that this time was no later than on or about the 29th of March, 1888; while, on the other hand, the testimony for the defendant tended to show that there was no specific time agreed upon. Upon the subject of delays for which defendant was responsible, the testimony for the plaintiff tended to show that the delays were at such times and from such causes substantially, as claimed in his declaration, except that it appeared that the delay at Tryon factory was caused by a legal process, for which it did not appear that defendant was responsible. It further tended to show that some of the men in his employment received wages by the month, while others (the larger number of his employes) were day-laborers; that generally, during these delays, his whole force had to be kept together, and paid in order to prevent his hands from scattering; and that, for various reasons, such as the condition of the weather, lack of full tieing of the track, lack of work which could be done profitably, and the fact that hands of plaintiff were kept waiting from day to day by promises made on behalf of defendant, but little could be done by the hands.
The testimony for the defendant, on the other hand, tended to show that, during these delays, the day-laborers in plaintiff's employment were not paid by him; that they were not used in bringing up back work, such as surfacing the track and the like, at which they could have been profitably employed, and at which it was customary to employ a force during such delays and that much of the delay and bad management of the work were caused by plaintiff being intoxicated, etc. Plaintiff admitted that he was intoxicated at times, but his testimony tended to show that this did not occur at such times as to interfere with his management of the work. The testimony for plaintiff further tended to show that after plaintiff had completed laying the track it was found that much of it was not laid according to the contract, so that a great deal of work in the way of surfacing, etc., had to be done upon it; and that, up to the 9th of August, nor at any other time about that date, was there anything ever said by plaintiff to the representative of defendant, about blame for delay or damages. The testimony for plaintiff tended to show that he was entitled to be paid for employing persons to watch the cattle-gaps; while the testimony for the defendant tended to show that much of, if not all, this claim was unfounded. The testimony for plaintiff further tended to...
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