Hannan-Hickey Bros. Const. Co. v. Chicago, B. & Q. Ry. Co.

• Decision Date: 15 December 1920
• Docket Number: No. 21422.,No. 21421.,21421.,21422.
• Citation: 226 S.W. 881
• Court: Missouri Supreme Court
• Parties: HANNAN-HICKEY BROS. CONST. CO. v. CHICAGO, B. & Q. RY. CO.

226 S.W. 881

HANNAN-HICKEY BROS. CONST. CO. v. CHICAGO, B. & Q. RY. CO.

No. 21421.

No. 21422.

Supreme Court of Missouri, Division No. 2.

December 15, 1920.

Appeal from St. Louis Circuit Court; Benjamin Klene, Judge.

Action by the Hannan-Hickey Bros. Construction Company against the Chicago, Burlington & Quincy Railroad Company, in which defendant interposed a counterclaim. From judgment rendered, both plaintiff and defendant appeal. Cause transferred to the Court of Appeals.

This is an action at law, in two counts, commenced by plaintiff in the circuit court of the city of St. Louis, Mo., on September 4, 1914. The case was tried on an amended petition.

In the first count it is alleged that on June 11, 1913, plaintiff entered into a written contract with defendant whereby the former agreed with defendant to do for it the necessary grading for a track to Ohio Valley Mining Company's mine No. 9, at Frankfort, Ill., and for yard tracks at said mine; that upon the performance of said work, and during the execution thereof, plaintiff, at the special instance and request of defendant, furnished materials and did work not covered by said contract of the character and reasonable value of $948.88. The material and labor sued for in this count were admitted to have been furnished by plaintiff, but defendant denies liability therefor.

The answer to first count pleads the facts relating to the materials and labor furnished as aforesaid, and claims therein that defendant is not liable to plaintiff therefor.

The second count of said petition alleges that prior to the execution of said contract defendant had built and was maintaining and operating, near Frankfort aforesaid, a branch line running from its main track to a certain coal mine in the vicinity; that, under a contract with the Ohio Valley Mining Company, a corporation, the terms and conditions of which contract are to plaintiff unknown, defendant was to build from its track a spur or branch line to the Ohio Valley Mining Company's mine No. 9, at Frankfort, Ill., along a certain route agreed upon, and which route in its course crossed various water courses, roads, streets, and the right of way of the Chicago & Eastern Illinois Railroad Company; that, in order to build said spur or branch line, it would be necessary to bridge said roads, streets, and the tracks of above-named railroad company; that it was also necessary to put in at various points along said route divers and sundry drainpipes and culverts, all of which facts were known to plaintiff and defendant at the time said contract was executed; that, for the purpose of building said spur, defendant prepared certain plans, profiles, and specifications for the grading of said line, and also for the building of said bridges, culverts, and drains; that defendant, in order to obtain proposals or bids for the doing of said work, submitted said plans, profiles, and specifications to plaintiff and other railroad contractors with the understanding and statements that defendant would furnish to the contractor who did the said work all of the necessary ties, rails, and other track material, at an agreed rental, and would itself put in all necessary drainpipes, culverts, and switches leading from said branch line or spur to the borrow pit or place from which the material to be used in the grading and construction of said track would be obtained; that, among other contractors, plaintiff submitted to defendant bids for the doing of said work, and, at defendant's request, plaintiff submitted a separate bid for the grading of said line of railroad and a separate one for the construction of said bridges; that upon consideration of same defendant informed plaintiff it would do the bridging itself, and would award to plaintiff the grading at the price mentioned in plaintiff's bid therefor, and that defendant would construct all of said bridges with due diligence and so as not to delay or be in the way of plaintiff in the doing of the grading, and would furnish plaintiff all the necessary ties, rails, and other track material, and would put in all necessary drainpipes and culverts, and all necessary switches leading from its branch line to the borrow, pit or place from which the material was to be obtained for said grading, so as not to hinder, delay, or interfere with plaintiff in the execution of the grading contract; that thereupon, relying on said promises and agreements of defendant, and in consideration of same, plaintiff entered into a written contract with defendant in respect to the matters aforesaid, dated June 11, 1913, wherein plaintiff was party of the first part, and designated as "contractor," and the defendant was party of the second part, and designated as "railroad company." Said contract was pleaded in petition and offered in evidence. It is alleged that defendant failed to comply with the terms and conditions of said contract in the particulars designated, whereby plaintiff was damaged in the sum of $7,500, for which it prayed judgment against defendant.

The latter, in its answer to said second count of petition, denied all the allegations of same, except the incorporation of plaintiff a...