Hot Springs R. Co. v. Maher

• Decision Date: 09 March 1887
• Citation: 3 S.W. 639
• Parties: HOT SPRINGS R. CO. <I>v.</I> MAHER.
• Court: Arkansas Supreme Court

3 S.W. 639

HOT SPRINGS R. CO.

v. MAHER.

Supreme Court of Arkansas.

March 9, 1887.

Appeal from circuit court, Saline county.

G. W. Shinn, for appellant. U. M. & G. B. Rose, for appellee.

BATTLE, J.

This action is founded on a contract made and entered into by the defendant, the Hot Springs Railroad Company, as the party of the first part, and the plaintiff, P. J. Maher, as the party of the second part, in which they agree as follows: "That for and in consideration of the payments hereinafter stipulated, to be well and truly made by the party of the first part, the party of the second part hereby agrees that he will build, or cause to be built, construct, and grade, a certain portion of the proposed change or alteration of the line of the Hot Springs R. R. on the west slope of Sulphur hill, on said line of railroad; commencing at or near to station one, on said new line, and running to and terminating at or near station number ten on said new line. In consideration of the faithful performance of the above stipulated work, completed to the satisfaction of the engineer in charge of said work, for and in behalf of said railroad company, said party of the first part agrees to pay to the party of the second part the sum of twenty cents per cubic yard for all earth excavation, and fifty cents per cubic yard for all loose rock excavation and $1 per cubic yard for all solid rock excavation, and to pay for said work on semi-monthly estimates, in full for all work done at time of making estimate, less 10 per cent., which shall be reserved from each estimate until said contract shall have been fully completed and complied with by the party of the second part. It is mutually agreed by and between the parties hereunto that all questions relating to quantity, quality, or manner of construction of said above stipulated work shall be decided by the engineer in charge of said work, and his decision shall be final and conclusive on all matters pertaining to this contract. The party of the second part agrees to commence said work on or about the fourth day of August, 1884, and to complete the same within sixty working days thereafter."

G. M. French, the engineer in charge of the work mentioned in the contract, made an estimate of the quantity and quality of the work done by plaintiff, and the amount due him therefor, under the contract, and ascertained that there was due $1,847.15, of which defendant had paid $1,836.41, leaving due $10.74. Plaintiff refused to abide by this estimate, but, insisting that it was wrong and erroneous, sued for the amount he contends is due him according to the contract. The evidence introduced in the trial as to the quantity and quality of the work done under the contract is conflicting. Plaintiff was allowed to prove, over the objection of defendant, how many hands were employed in doing the work sued for, the number of days they were employed in the work, and the amount of each kind of the work done they could do in a day.

The court instructed the jury, at the request of plaintiff, over the objections of defendant, as follows:

"(2) If the jury believe that the decision of French was arrived at or obtained by any fraudulent practice, suppression of evidence, or gross error or mistake, they will find for the plaintiff what they believe from the evidence he is entitled to recover.

"(3) Fraud is the wrongful and intentional deprivation of a person of his legal rights."

"(5) No act of French which was done fraudulently or in gross mistake of fact in his estimate will bind Maher."

The defendant asked for the following instructions:

"(1) The plaintiff and defendant having by their contract selected the engineer in charge of the work to be done under it to estimate the work, and decide all questions pertaining to it, and agreed that...