Chicago & S.E. Ry. Co. v. Yawger

• Citation: 56 N.E. 50,24 Ind.App. 460
• Parties: CHICAGO & S. E. RY. CO. v. YAWGER.
• Decision Date: 23 January 1900
• Court: Court of Appeals of Indiana

24 Ind.App. 460

56 N.E. 50

CHICAGO & S. E. RY. CO.

v.YAWGER.¹

Appellate Court of Indiana.

Jan. 23, 1900.

Appeal from circuit court, Henry county; W. O. Barnard, Judge.

Action by Adrian J. Yawger against the Chicago & Southeastern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. R. Crawford and W. C. Stover, for appellant. Lovett & Holloway, for appellee.

ROBINSON, J.

Overruling a demurrer to the complaint is not available error, if there is a special finding of the facts, and there is a correct statement of the law upon the facts found. Railway Co. v. Downey, 18 Ind. App. 140, 47 N. E. 494;Woodward v. Mitchell, 140 Ind. 406, 39 N. E. 437. The facts show that on April 15, 1894, appellee contracted in writing with appellant to do the clearing, grubbing, grading, and timber work on the extension which appellant was then building between Anderson and Muncie, and to have the same completed on or before June 15th, for a stipulated consideration; that appellee entered upon the execution of the work, and, in performance of the contract, graded and built ----- miles of work, the first six miles extending east from Anderson being constructed by another contractor; that appellee constructed the work up to and within five miles of the city of Muncie on May 28, 1894; that he was ready, willing, and able to complete his contract, and so continued until and including June 15th; that appellant failed, neglected, and refused to perform its part of the contract, and refused, on May 25th and continuously thenceforward, to procure in any way the right of way for the work from thence on to Muncie; that, by reason of such failure, appellee was compelled to keep his force of hands, teams, tools, and machinery upon the work, and was compelled to and did keep them in idleness from May 28th to June 15th, and was prevented from performing any part of such work for the distance of 5 1/2 miles; that had appellant procured the right of way, and permitted appellee to finish the work, he would have received by the contract $6,080.03; that it would have cost appellee $4,545.03; that, by reason of appellant's failure to procure such right of way and the consequent preventing of appellee from doing the work, he was damaged $1,535; that from the execution of the contract, continuously up to July 2, 1894, appellee was at all times ready, willing, and able to perform the contract, and would have done so within the period specified, had he not been prevented from so doing by appellant's failure to obtain the right of way; that at the May term, 1894, of the circuit court of the United States for the district of Indiana, and after May 28, 1894, appellee brought suit to recover and foreclose a mechanic's lien upon the railroad for the amount and value of the work actually performed, amounting to $4,470; that he there obtained a judgment for that sum, and decree foreclosing a mechanic's lien therefor upon the line of such extension; that in that action there were no averments of or claim for damages for appellant's failure to perform its contract in any way whatever, and no question of that kind was averred, litigated, or determined in that cause, and the only question litigated and determined therein was the amount of the work actually done and the question of mechanic's lien. Upon these facts was stated a conclusion of law in appellee's favor for $1,535.

The contract provides that appellant should complete the work on or before June 15th, but no year is named. Taking the contract as a whole, and the nature and extent of the work to be done, we think the only reasonable construction that can be given the expression is that the parties intended the 15th day of June next following April 15, 1894, the date of the contract. Hedderich v. State, 101 Ind. 564;Tillson v. Bowley, 8 Me. 163;Grosvenor v. Magill, 37 Ill. 239. The findings show that on a certain date appellant and appellee “entered into, executed, and mutually delivered, one to the other, the following contract in writing, to wit,” followed with a copy of the contract. This must be considered as a finding that a contract was made, and as stating the terms of the contract....