HW Nelson Co. v. Grand Trunk Western R. Co., 6730.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Citation: 80 F.2d 986
• Docket Number: No. 6730.,6730.
• Parties: H. W. NELSON CO., Inc., v. GRAND TRUNK WESTERN R. CO. et al.
• Decision Date: 09 December 1935

80 F.2d 986 (1935)

H. W. NELSON CO., Inc.,
v.
GRAND TRUNK WESTERN R. CO. et al.*

No. 6730.

Circuit Court of Appeals, Sixth Circuit.

October 8, 1935.

Rehearing Denied December 9, 1935.

80 F.2d 987

J. H. Clark, of Detroit, Mich., and Newton D. Baker, of Cleveland, Ohio (Clark, Klein, Ferris & Cook, of Detroit, Mich., on the brief), for appellant.

John J. Gafill and H. V. Spike, both of Detroit, Mich., for appellee.

Before HICKS and ALLEN, Circuit Judges, and NEVIN, District Judge.

HICKS, Circuit Judge.

Appeal from an order dismissing the action.

Appellant, a general contractor, brought suit against appellee, successor to Detroit, Grand Haven & Milwaukee Railway Company, for damages resulting from inability to proceed with the construction of a railroad grade it had contracted to build, due to appellee's delay in acquiring full title to the right of way, and to its misrepresentations to appellant as to the state of its title. The construction was incidental to the widening of Woodward avenue, a state highway leading north from Detroit. The widened highway covered portions of appellee's old right of way and the construction, involved, was of the relocated railroad grade.

The declaration was framed in three counts. The first set forth that appellant made a bid which was accepted for the grading of the relocated line extending from a point in Royal Oak, Mich., northwardly about nine miles to a point beyond Birmingham, Mich. The contract was

80 F.2d 988

prepared between May 29 and June 21, 1928, was executed about June 22, 1928, and was filed as Exhibit A to the declaration

It was averred that by the terms of the contract appellee was to provide the right of way free from any liens, claims or interests of any person or persons other than appellee so that appellant might proceed expeditiously; that about June 1 appellee notified appellant that it had secured substantially all the right of way and ordered appellant to commence work at Maple avenue, Birmingham; that having already moved its equipment to the right of way appellant assembled it together with a working force at Maple avenue ready for actual excavation on June 12, when appellee "notified plaintiff to remove all equipment and track material, including track already laid south of Maple Avenue, advising the plaintiff's representative * * * that injunctions were pending or threatened which prevented the doing of the work to be performed at this point * * *," and ordered the equipment moved to Charing Cross road, two and a half miles south, which change resulted in large expense to appellant; that after having finished the grade separation work there, it was ordered about July 3 to a cut south of Trowbridge farm, when an injunction was served on both appellee and appellant by those claiming easements in the right of way; that thereupon appellee informed appellant that the injunctions would shortly be dissolved and ordered it to keep its equipment and organization ready to proceed under the contract; that appellee advised appellant that it would be paid for any loss on account of the delay; that appellant did keep its equipment and men on the job ready to resume work when the injunctions should be dissolved, which was about July 28, 1928, and work was then resumed but was shortly thereafter again suspended by reason of other injunctions; that appellant kept its organization together, though reduced in force, and its equipment upon the job, appellee continuing to advise appellant that the later injunctions would shortly be dissolved and the work could be resumed and that appellant would be paid for all loss resulting from delay.

Appellant averred that about the time all the injunctions were finally dissolved in July, 1929, it contracted with appellee for extra work near the Yellow Cab plant and agreed to make no claim for delays thereafter occurring on the Woodward avenue project; that appellee then altered its plans to provide a four track railway instead of the double track one, necessitating much additional work; that appellant then reassembled its force and reconditioned its tracks, trestles, etc., at great loss and expense and resumed performance of the contract upon the assurance that it would be without prejudice to its right to collect for losses due to delay, except as modified by the Yellow Cab contract.

It was averred that all work was completed by August, 1931, and that appellee acknowledged complete performance and paid appellant on the express agreement that all losses suffered by it on account of the delays and injunctions were excepted from the settlement. It is unnecessary to particularize the many elements incorporated in appellant's alleged measure of damages.

The second count repeats certain averments of the first but is distinguished therefrom by the averments that after the injunctions of July 3, 1928, were served, causing a suspension of the work south of Trowbridge farm, appellant through its representative "discussed with the defendant the possibility of proceeding with the work under the contract and the defendant advised the Plaintiff that said injunctions would be dissolved within a very short time and ordered this plaintiff to keep its equipment, men," etc., ready for operation and "then and there agreed with the plaintiff that it would pay any loss that the plaintiff might suffer on account of such delay and on account of the retention on the job of its equipment," etc. (italics ours), and in reliance thereon appellant did keep its equipment and men on the job and moved them to another point, commencing preliminary work in preparation for construction, when it was again served with an injunction on August 3, 1928, and was again compelled to suspend operations; that during all this time appellee from...