Henderson-Boyd Lumber Co. v. Cook

• Decision Date: 20 December 1906
• Citation: 42 So. 838,149 Ala. 226
• Parties: HENDERSON-BOYD LUMBER CO. v. COOK.
• Court: Alabama Supreme Court

42 So. 838

149 Ala. 226

HENDERSON-BOYD LUMBER CO. v. COOK.

Supreme Court of Alabama

December 20, 1906

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Action by R. D. Cook against the Henderson-Boyd Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action on the common counts for work and labor done. The contract was in the shape of a letter, and was as follows: "R. D Cook, Montgomery, Ala.: Confirming conversation with our Mr Boyd, we will give you contract for twelve or fifteen miles of railway, paying you three hundred and fifty dollars per mile, three hundred of which is to be paid as each mile is accepted by us, if you so desire, and other fifty dollars to be held back, per mile, until contract is completed. This fifty dollars held to guaranty completion of work. Work will consist of taking up track from where it is now laid, laying it, and surfacing, same to be accepted in mile sections. We to furnish locomotive, cars, and engineer. For any new grading that is necessary for you to do, will pay you 12 1/2 cents per yard. Grubbing to be done governed by our present specification. For trestling or timber work we pay you actual cost plus 10%. For 12,000 cross-ties or more furnished by you, 10 cents each delivered, we to furnish the timber. Said ties to be eight feet long and to show six inches face on both sides, and three inches heart on both sides. This work to begin not later than the 20th of the month, and to be completed in seventy-five days. April 13th, 1905." The modifications and the other facts sufficiently appear in the opinion.

The plaintiff testified that he was a railroad contractor of several years' experience, had built much railroad, and that old grading consisted of work on any part of the track on which dirt had been broken, or on which any grading had been done; that new grading consisted in work on a line on which no dirt had been broken; that old grading was very much more expensive than new grading, for the reason that the top soil had been removed; that surfacing consisted in leveling the track after it was laid on the cross-ties, filling in between the cross-ties with dirt, and generally placing the track in condition after the rails had been laid. Grading consisted in getting the roadbed ready for the laying of the cross-ties and rails. The defendant objected to each part of this testimony, and moved to exclude it. The court overruled the motion, and the defendant excepted. The plaintiff also testified, over the objection of the defendant, that all the extra items of work he did and included in his account were necessary items, and that with items of this kind it is the custom of railroad contractors to charge on the force account, which is actual cost, plus 10 per cent.

The plaintiff requested the court to give the following charges (1) Affirmative charge. (2) "If the jury believe the evidence in this case they must find for the plaintiff for not less than $391.61, with interest." And to giving of these charges the defendant excepted.

The defendant requested the following charges, which were refused by the court: "If the jury believe that at the time the plaintiff stopped working on said railroad, on or about July 15, 1905, there was an existing contract between him and the defendants in regard to the matters upon which the suit is brought, then, unless the jury find from the evidence that the plaintiff has complied with the contract in its every term before bringing this suit, he is not entitled to recover anything. (2) The court charges the jury that unless they believe from the evidence that the plaintiff has complied with every term of his contract with the defendant, if they believe there was such a contract, at the time plaintiff stopped work on the said railroad, then Cook is not entitled to recover anything. (3) The court charges the jury that if the plaintiff did not cut the 12,000 ties as stipulated in the contract, and the defendant has never in any way released him from this term of the contract, then the court charges the jury that the defendants are entitled to retain the $50 per mile of track completed by the plaintiff as stipulated damages. (4) If the jury believe from the evidence that the contract introduced in evidence was in force, and had not been abandoned by agreement by both parties, at the time plaintiff stopped work in July, and that the plaintiff has not complied with every term of said contract, then the defendant is entitled...