Estel v. St. Louis & Southeastern R.R. Co.

• Decision Date: 31 March 1874
• Citation: 56 Mo. 282
• Parties: EMANUEL ESTEL, et al., Respondents, v. ST. LOUIS & SOUTHEASTERN RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

56 Mo. 282

EMANUEL ESTEL, et al., Respondents,

v.ST. LOUIS & SOUTHEASTERN RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Bereman & Smith, for Appellants.

Van Waggoner & Dickson, for Respondents.

WAGNER, Judge, delivered the opinion of the court.

This was an action brought by plaintiffs as surviving partners of the firm of M. P. Gordon, & Co., to recover a balance of which it was alleged was due them for furnishing and delivering cross-ties to defendant.

The petition contained two counts. The first was based on a written contract entered into between the plaintiffs and defendant, bearing date April 30th, 1870, by which plaintiffs agreed to deliver 20,000 railroad cross-ties to defendant, for which they were to be paid sixty cents each; fifty-five cents a tie as they were delivered, and the additional five cents when the whoie number was furnished. The petition then averred a complete fulfillment of the agreement in every respect, and claimed that a balance was still due and unpaid.

The second count charged another contract between the same parties to furnish an additional quantity of ties at the same price, and alleged the delivery of a certain number, for which no payment had been made.

The answer denied that plaintiffs complied with the contract stated in the first count. It alleged that the time of the delivery of the ties, which in the written agreement was fixed at Aug. 1st, 1870, was extended to Sept. 1st, 1870, and that time was made the essence of the contract; that the chief engineer of the defendant was by the terms thereof, the sole and final judge of the quality, character, value and number of such ties as should be furnished by the plaintiffs, and that payment therefor was to be made only on his certificate, and that the chief engineer had not certified that the 20,000 ties were delivered, and that they were not furnished and delivered within the specified time.

The answer to the second count denied the agreement, and denied that any ties were furnished under it, and averred that they were all delivered under the first contract; and charged that full payment had been made.

There was a replication filed in which it was alleged, that the chief engineer refused to certify for the ties that were furnished and delivered, and the payment set up in the answer was denied.

The trial was before the court and a jury, and a verdict was found on each count for the plaintiffs. The contract referred to in the first count of the petition, and under which the first ties were delivered, provided that the chief engineer of the defendant should make, or cause to be made, an inspection of each and every lot of cross-ties delivered under the agreement, and should give a certificate setting forth the number and value of such cross-ties; whereupon the plaintiffs should be entitled to demand and receive the sum of fifty-five cents for each and every tie so delivered, which amount should be paid by the defendant within ten days after such inspection and certificate. Upon the delivery and acceptance of the whole number of the cross-ties named in the agreement, then the plaintiffs were to be entitled to demand and receive upon the certificate of the engineer an additional sum of five cents each for the 20,000 cross-ties, it being understood that the five cents named, should be withheld during the delivery of...