Howard v. Pensacola & A.R. Co.

• Decision Date: 07 January 1889
• Citation: 5 So. 356,24 Fla. 560
• Court: Florida Supreme Court
• Parties: HOWARD et al. v. PENSACOLA & A. R. CO.

5 So. 356

24 Fla. 560

HOWARD et al. v. PENSACOLA & A. R. CO.

Florida Supreme Court

January 7, 1889

Appeal from circuit court, Gadsden county; DAVID S. WALKER, Judge.

Syllabus by the Court

SYLLABUS

If a complainant amends his bill so as to materially change its character after a plea to it has been adjudged sufficient, he cannot, on an appeal taken from a final decree, rendered upon the case made by the amended bill, plea, and answer, and replication thereto, and testimony, assign as error the ruling upon the plea to the original bill.

A material amendment of a bill, after a decree pro confesso for default in pleading has been opened, is a waiver by the complainant of his right to assign as error on appeal the opening of such decree.

Charges of fraud or mistake must be specific, and to avail anything they must be proved if denied.

Where a contract is embodied in several instruments, its true meaning is to be ascertained from a consideration of all the instruments and their effect upon each other.

Although the parties to a written contract may, by the adoption and pursuit of a course of dealing inconsistent with a provision of the contract, substitute the terms of their dealing for the particular provision of the contract, yet they will not be held to have intended, nor be bound by, such substitution when it appears that, upon discovering that they had through mistake of both parties been acting contrary to the agreement as written, they abandoned such course of dealing, and conformed to the terms of the written contract, and the conduct of the party against whom it is sought to recover upon the basis of such departure from the contract has shown from the time of the discovery of the mistake, a positive determination to insist upon and adhere to the contract as written.

Where differences between the parties to a contract have been referred by them to a third person, and afterwards a settlement has been agreed to by the contracting parties upon the basis of the referee's adjustment, and such settlement has been partly performed by the payment of sums in accordance with and in liquidation of such agreement of settlement, the party receiving the payments will, in the absence of any fraudulent or unfair dealing by the other party to the contract, or by such referee, and of any mistake upon the part of such referee, be held to the settlement agreed upon by them.

The parties to a contract may submit their differences to an employe of one of them for arbitration or adjustment, and agree that his decision shall be final as between them.

A provision by which a party who is to perform a specified work for another agrees that he will not execute any extra work nor make any modifications or alterations in the work described in the specification and plans, unless ordered in writing by a named agent of the party for whom the work is to be done, nor claim pay for extra work, modifications, or alterations, unless such written order be produced, is valid.

Where a person has contracted to do work for another, and has assigned the contract and whatever may be payable to him thereunder for the performance of the work to a third person as collateral security for moneys advanced and to be advanced by such third person to enable the assignee to perform his contract, and after such assignment the parties to the original contract have adjusted their differences as to the amount payable under the contract, the fact of such assignment will not avoid such adjustment either in favor of the assignor or of the assignee in a suit in equity instituted by them against the other party to the contract the amount fixed by the adjustment exceeding that due the assignee by the assignor. What would be the rule if the amount as adjusted was less than that due the assignee, not decided.

COUNSEL

John W. Malone, for appellants.

W. A Blount, for appellees, and cross-appellants. On July 25, 1881, John T. Howard (one of the appellants) and John C. Walker entered into a written agreement with the Pensacola & Atlantic Railroad Company, of which agreement the following are provisions material to the case under consideration.

(1) Howard & Walker agreed to execute, perform, and complete the gradation, trestling, and delivering of the cross-ties on the section of the appellee's railroad between the Chattahoochee and Chipola rivers, a distance of about 25 miles, according to the specifications, profiles, maps, plans, and drawings exhibited by the engineer of the railroad at his office in Pensacola, at a letting duly advertised for the same in the Pensacola and other newspapers, or by 'blue copies;' said specifications, etc., to be implied or reasonably inferred therefrom, and to abide by, perform, follow, and fulfill all the stipulations, regulations, and directions in said specifications set forth. The 'said labor, tools, engines, machinery, materials, to be furnished, and the said work to be done to the satisfaction of the engineer in charge, or vice-president for the time being, of said company, according to the said specifications, profiles, or blue copies, and according to the general plan of the superstructure, and such working plans and detail drawings as shall be furnished by the company, the same to be approved by the engineer in charge for the time being.'

(2) Howard & Walker 'agree that they will not execute any extra work, nor make any modifications or alterations in the work mentioned in said specifications and plans, unless ordered in writing by the said engineer in charge, not will they claim payment for the same unless such written order be produced.'

(3) It is 'further agreed that the said engineer in charge shall have the right from time to time to direct or order in writing any modifications or alterations to be made in said specifications, profiles, maps, plans, drawings, blue copies, etc., and in portions of the materials or work in the said specifications mentioned, and in like manner to direct and order the omission altogether of any portion or portions of the work in said specifications mentioned, or to substitute any other work or works for or in place of said portions, and that such alterations, omissions, and substitutions may be so directed and ordered to be carried out by the said engineer in respect to any portion of the work in said specifications, maps, plans, drawings, blue copies, etc., but the same or any extra work which shall be directed to be done shall not vitiate nor determine this contract, but, on the contrary, the same shall remain in full force, subject only to this proviso: that the value and amounts of all such omissions as aforesaid shall be deducted from the amount which would otherwise be due under this contract, and that the value and amount of all such other modifications, alterations, substitutions, extra or added work shall be either deducted from, allowed for, or added to the amount which would otherwise be due under this contract, according to the particular nature and description thereof; the said engineer in charge, or vice-president for the time being, to ascertain, determine, and fix such respective value and amounts, and whether the same shall be deducted from, allowed for, or added to the amount to be paid under this contract.'

(4) The railroad company, 'in consideration of the full and complete performance of said work to the entire satisfaction of said vice-president or engineer in charge for the time being, to be evidenced by his certificate, agrees to pay to' Howard & Walker 'the prices set forth in the schedule to the proposal of' Howard & Walker, 'a copy of which, together with 'blue copy' and specifications, is annexed to and made part of said general specifications hereto annexed, and of this contract, at the time and in the manner following: Upon the execution of portions of the work to the satisfaction of said engineer in charge for the time being, eighty per cent. of his monthly estimate of the relative value of the work performed, including materials furnished at the site of the structure, to the 1st day of each month, shall be paid on or before the 15th day of the same month; said payments to be made at the office of the said railroad company in Pensacola. The balance shown by the engineer's certificate to be due on this contract shall be paid at the railroad company's office in Pensacola on the completion of the entire work, and upon the production of the certificate aforesaid showing said balance.'

(5) 'Finally it is agreed that if any dispute or misunderstanding shall arise between the parties as to the meaning or execution of the provisions of this contract, or any matters not covered by this contract, it shall be referred to a referee, and his decision shall be final as between the parties hereto, and as binding as if specially described herein.' The 'proposal' and the 'specifications' mentioned in the fourth paragraph above will be set out to the extent necessary hereafter.

On the 21st day of May, 1884, Howard (who had survived Walker) and George and Edward Lewis, partners under the style of B. C. Lewis & Sons, filed a bill in equity against the railroad company, alleging the contract.

The allegations as to the prices under the fourth paragraph are that the company agreed to pay the prices 'set forth in the schedule to the proposals' of the said Howard & Walker, 'that is to say, 30 cts. per cubic yard for loose earth excavation,' etc., and the paragraph in question is set out substantially as stated above, except that nothing is said as to the italicized provision of said paragraph as to blue copy and specifications.

The bill also alleges that Walker died on November 10, 1881, and that on the 25th day of that month Howard, in order to enable him the...