Dalrymple v. Lauman

• Decision Date: 12 July 1865
• Citation: 23 Md. 376
• Parties: WILLIAM F. DALRYMPLE v. GEORGE M. LAUMAN, & others.
• Court: Maryland Court of Appeals

23 Md. 376

WILLIAM F. DALRYMPLE v. GEORGE M. LAUMAN, & others.

Court of Appeals of Maryland.

July 12, 1865

APPEAL from the Superior Court of Baltimore city:

This is an appeal from a judgment rendered in the Superior Court of Baltimore city, the 18th of October 1860, for $5,900 and costs, in a suit docketed by consent of parties to January term, 1858.

The original nar. was amended, and, as amended, contains two counts, and sets out as cause of action, a certain agreement between the parties to the effect recited in the nar. as follows: " We, whose names are hereunto written, in case a contract is made between the Northern Central Railway Company and George M. Lauman, Isaac Eckert and J. Hall Pleasants, for the completion of said road between Sunbury and Canton, do severally agree to and with the said last named parties, the contractors, to purchase from them the bonds of said Company, which they may obtain under said contract, at the rate of seventy-five per cent. upon the par value thereof, and to the amount for which each hereby subscribes, and to pay for the same as follows: ten per cent upon demand, and ten per cent. thereafter in monthly payments, or, as we may respectively elect the entire amount in cash; this subscription, however, is not to be binding until said bonds to the amount in the aggregate at par, of one million of dollars, shall be disposed of." The first count then avers, that the defendant subscribed said agreement for the sum of $25,000; that a contract was made between the plaintiffs and the Railway Company, for the completion of the road, and that bonds in the aggregate at par of $1,000,000 were disposed of; that a demand for the first instalment of his subscription had been made of the defendant, but he had not paid it, nor the several monthly instalments thereafter, as they became due but refused so to do, or to exercise his privilege of paying the whole subscription in cash.

The first count looks to breaches of the contract up to the time of suit, treating the non-payment of each accruing instalment as a distinct breach. The second count, which sets out the substance of the agreement, alleges an utter refusal of the defendant to perform the agreement, averring readiness of the plaintiff to comply, and rests upon the theory that the refusal, as stated, affects the entire contract, giving the plaintiff a right, without delay, to proceed for breach of the contract as an entirety.

The general issue was pleaded, with leave to give special matters in evidence, and errors of pleading waived on both sides.

The bill of particulars demanded, claims the difference between the sum contracted to be given for $25,000 of bonds of the Northern Central Railroad, being seventy-five per cent., or $18,750, and the market value of said bonds, at the time of the breach of the contract, 20th October 1857, being fifty per cent., or $9,375, the said difference being for principal, $9,375, with interest thereon from date of breach 20th October 1857.

The first exception sets out the several subscription papers, similar to the one signed by the defendant, and referred to in the nar., these being introduced by the plaintiff's proof, to show a disposition of $1,000,000 of bonds called for by the contract. Direct subscriptions for the bonds to the amount at par of $381,000 are shown, though, of that amount, the plaintiffs, at the trial, only proved the subscription and payment to the extent of $242,000. On the paper is the defendant's name, as subscriber. It is an admitted fact in the case, that at the time of the signature of the defendant to the agreement sued on, the plaintiffs' names were not inserted as contractors with the Railroad Company, but there was a blank left, which blank was afterwards, and before suit, filled up by the plaintiffs with their names. Subscriptions upon similar papers were proved by commissions issued to New York, and York, Pa. In New York the subscriptions amounted to $93,000, omitting that of J. Hillyard Cameron, as to which the power was not produced. Under the York commission, $30,000 were shown. A subscription of $5,000 by Eli Lewis; by the Canton Company of $80,000; a sale in January 1857, by Patrick H. Sullivan, of $3,500, on account of Pleasants, one of the plaintiffs, at 70; a sale in September 1856, of $54,000 of the bonds, by Samuel Harris & Sons, for account of Pleasants, and sales by Wm. Fisher & Son, for the same account, which shows up to the end of March 1857, a disposition of $162,000 worth of bonds at an average of 69. The plaintiffs further proved subscriptions and payment by Dougherty, Herr, and others, to the extent of $81,500.

The plaintiffs further proved a contract by them, as contractors, with the " " Montour Iron Company," dated 8th December 1855, for three thousand five hundred tons of rail, to be placed on the road, to cost $72.00 a ton, and to be paid for in the bonds referred to, at the rate of 75 per cent. of their par value. At the rate of $72.00 per ton, the moneyed consideration would have been $252,000, which, at 75 per cent., represented $336,000 of bonds.

They further proved agreements with sub-contractors on the road, to take the bonds in part payment of work, and that by the middle of January 1857, the sub-contractors had earned and had actually received, or were entitled to receive, said bonds to the amount in the aggregate of $111,500.

The disposition of bonds in these various ways, foots up, according to the statement of the plaintiff below, $1,188,500, viz:

By the three subscription papers, $242,000

In New York, 93,000

In York, 30,000

Eli Lewis, 5,000

Canton Company, 80,000

Sales by Sullivan, 3,500

Sales by Harris & Son, 44,000

Sales by Fisher, to 1st April 1857, 162,000

Herr, Dougherty, et al., 81,500

Montour Co., 336,000

Sub-contractors, 111,500

$1,188,500

The plaintiff proved by John S. Leib, Treasurer of the Northern Central Railroad, that the whole amount of the bonds of the Company, issued under the contract of the 20th December 1855, and its supplements, was $996,500, and these were issued up to the end of the year 1856; that at the end of that year the plaintiffs were entitled to receive from the Company, for work done under that contract, in bonds, the further amount of $22,161, and the Company, in lieu of delivering bonds to that amount, paid the plaintiff their value in money, estimated at 75/100, or $16,620.75, thus making the whole sum, in bonds, to the end of 1856, $1,018,661; and that on the 16th of January 1857, the Northern Central Railroad paid to the plaintiffs $80,000 in said bonds, for work done and to be done under the said contract, as per receipt.

The same witness proved that all subsequent payments to the plaintiffs, were on account of another contract, and, on cross-examination, proved that no other contract than that of the 20th of December 1855, was made for building the road from Sunbury to Canton; that the road had been worked upon by the Company through other contractors, and had to that time never been completed; the tunnel at Canton not being commenced, though work was done by the plaintiffs on the line of the road running over the grounds of the Canton Company, to the value of $300,000 and upwards.

The plaintiffs then gave in evidence a contract between themselves, as contractors, and the Northern Central Railroad Company, dated the 20th of December 1855, for the construction of all the unfinished portions of the road between Tide-Water, at Canton, on the Patapsco river, and Sunbury, in Pennsylvania. The contract, with its specifications and supplements, is voluminous; by its terms the contractors are to receive, as consideration, $2,005,000 of which $1,000,000 are to be in bonds of the Company, to be issued to the contractors, or to their order, from time to time, as the work progressed, and in the manner specified. For the bridge across the Susquehanna, payable in money, $280,991. For the completion of the road from Millersburg to Sunbury, $521,509. And for the completion of the tunnel on the Canton division, $202,500; making, in the aggregate, the amount above stated. There is a clause of the contract by which the Company reserves the right to commute any portion or the whole of the cash payments into the bonds of the Company, of the particular issue proposed to be put out in pursuance of this contract. The contractors stipulate to complete the unfinished portions of the road between Tide-Water, at Canton, and the junction of the road with the Sunbury and Erie road, at Sunbury, Pa.; to complete the bridge then contracted for over the Susquehanna; to construct a road from a point near the Bolton Station, at Baltimore, by tunnel, or otherwise, to Tide-Water, at Canton; as also a branch from a point near the Belvidere bridge to the Calvert Station. The contractors are to satisfy all claims for damages to land or buildings injured or used in the construction of the road, though this applies only to the upper, or Pennsylvania end of the road; the Canton division is exempted. They stipulate to have the portion from Bridgeport to Sunbury, with the exception of the bridge, completed by the 1st of July 1856, which was extended to the 1st of September 1856. The Canton division, with the exception of the tunnel, was also to be completed by the 1st of July 1856. But the Company stipulate that the division between Millersburg and Sunbury, as also the tunnel on the Canton end, shall not be commenced or worked on until it might suit their convenience, and they should direct. In a supplemental agreement of the same date with the contract, the consideration is somewhat varied in...