Foley v. Marsch

• Decision Date: 16 November 1915
• Citation: 154 N.W. 982,162 Wis. 25
• Parties: FOLEY v. MARSCH.
• Court: Wisconsin Supreme Court

162 Wis. 25

154 N.W. 982

FOLEY

v.MARSCH.

Supreme Court of Wisconsin.

Nov. 16, 1915.

Appeal from Circuit Court, Milwaukee County; Chester A. Fowler, Judge.

Action by Thomas W. Foley against John Marsch. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover on an alleged agreement made by an oral modification of a written contract entered into between the defendant, as the principal grading contractor for the Milwaukee, Sparta & Northwestern Railroad, and the plaintiff as a subcontractor. The defendant Marsch is a general railroad contractor, and in December, 1909, contracted with the Milwaukee, Sparta & Northwestern Railroad to construct about 53 miles of new railroad between the city of Milwaukee and Clyman Junction, in this state. The contract was for the complete construction of the road from grading to track-laying and ballasting. In March, 1910, the plaintiff negotiated with defendant to subcontract for some of the construction work covered by defendant's contract with the railroad company. In company with defendant's superintendent, plaintiff drove along roads parallel to the proposed railroad right of way, and at various places walked over and examined the character of the ground and material, in connection with the engineer's profile of the proposed road, showing cuts and fills and engineers' estimates of quantities of material to be moved and classification of the material in earth, rock, and loose rock, etc., and the estimated quantities of each. About March 21, 1910, plaintiff and defendant made a preliminary agreement by which plaintiff was to undertake as defendant's subcontractor to do a part of the work, stating the amount of work by station numbers specified in Marsch's contract with the railroad company, and fixing the price of the work. On April 5, 1910, plaintiff and defendant signed a written contract containing the terms and conditions on which plaintiff undertook the work, a description thereof, together with the prices plaintiff was to receive for the different parts of the work, and referring to the principal contract between defendant and the railroad company. It was required by the plaintiff's contract that the work of construction assumed by him had to be done in accordance with the specifications of the railroad company under the principal contract with Marsch and to the satisfaction of the railroad company's chief engineer, whose classification, measurements, and calculations respecting boundaries of excavations were to be final and conclusive. The contract also provided:

“That the said work shall be begun by the said contractor on or before the 10th of April, 1910, and shall be completed as follows: Sta. 1914 to Sta. 1990, July 31, 1911, and Sta. 1990 to Sta. 2300 and Y's on or before November 1, 1910; time of commencement, completion, and rate of progress being of the essence of this contract.”

The contract also contains the following:

“It is further agreed that the said principal shall have the right to cancel and terminate this contract at any time, with or without notice to the contractor, without liability by the principal for damages therefor and thereupon any amount then unpaid for work theretofore done by said contractor at the prices herein provided shall be paid upon the estimate of said chief engineer, showing quantity of work done, to the date of such canceling of this agreement, and upon such payment being made or tendered all liability of the principal under this contract shall cease and determine, and in no case shall the principal be held further, nor otherwise than herein stated, nor shall any claim for prospective profits on the work not done be made, allowed, or paid for. Upon the cancellation of this contract for any cause, the said contractor hereby agrees to immediately relinquish possession of such work and of the materials procured therefor by the contractor, and place the same in the hands of the said principal, in such a manner as will enable him to complete the work without hindrance or delay, and said principal shall have the right to re-enter, expel, and remove therefrom the said second party, or any person or persons acting in his behalf, using such force and means as may be considered by him necessary for the purpose, without any claim on the part of the contractor for damages therefor in any way.”

Plaintiff moved onto the work in April and began the grading work in May. He secured Dugan & Naylon as subcontractors to do a part of the work. During the months of May and June the work progressed slowly. The plaintiff testified that in the latter part of June he discovered that he could not perform the work at the contract price, and on July 5, 1910, called on the defendant at his office in the city of Milwaukee and stated to him that he could not perform his contract in view of the material he encountered which required removal, and for want of financial means and a proper outfit to do the work, and that according to the engineer's estimates of the work done he had lost $2,500, and that he wanted to give it up and stand his losses to date. He also testified that the defendant then and there told him that, if he would complete the work he and Dugan & Naylon had started, defendant would supply him with a steam shovel, ties, cars, and rails free of charge, and would pay him what this work was worth, and would guarantee plaintiff against loss, and that, relying on this promise of defendant, he went back to Clyman and continued the work that he had begun and the work that Dugan & Naylon had begun; that Marsch sent him a steam shovel to use in his work July 25th, and later the ties, rails, and cars. Plaintiff continued on the job and completed this work by June 1, 1911. The defendant denies that the plaintiff had this alleged interview with him, or any conversation at any time to this effect, as claimed by plaintiff, and denies every alleged modification of the original written contract with the plaintiff.

The court submitted this issue between the parties to a...