Kidwell v. Baltimore & O. R. Co.

• Citation: 52 Va. 676
• Court: Supreme Court of Virginia
• Decision Date: 04 September 1854
• Parties: KIDWELL v. THE BALTIMORE & OHIO RAILROAD CO.

52 Va. 676

KIDWELL v. THE BALTIMORE & OHIO RAILROAD CO.

Supreme Court of Appeals of Virginia.

September 4, 1854

(Absent DANIEL, J.)

1. A contractor for the construction of a bridge on a railroad having received the monthly estimates based upon a particular construction of his contract without objection, will be held to have acquiesced in that construction, and to be bound by it.

2. The contract providing that the final estimate of the engineer shall be conclusive upon the parties to the contract, that is a valid contract, and the estimate of the engineer, in the absence of fraud or mistake, is conclusive.

3. If the contractor might have refused to abide by the final estimate of the engineer, yet having submitted his charges for the work done to the engineer, and not having objected to his proceeding to make up the final estimate, the contractor is concluded by the action of the engineer.

4. The engineer having the right under the contract to stop the work, if the means for carrying it on should fail, and having informed the contractor that the work must be stopped unless he would receive his monthly payments in orders which were at a discount; and the contractor having consented to receive them, he is not entitled to recover for the amount of the depreciation of said orders.

The following statement of the case has been prepared by Judge MONCURE:

On the 5th of August 1839 the appellant Zedekiah Kidwell contracted with the appellees, the Baltimore and Ohio railroad company to build and complete, in a workmanlike manner, on or before the first day of September 1840, a bridge, with stone abutments and wooden superstructure, across Little Cacapon creek; all the work and materials of which were to be approved by the engineer or agent of the said company having the superintendence of the work, to entitle the said Kidwell to the compensation stipulated to be paid for the same; it being agreed that the said agent should have full power, in case he should believe the said work or any part thereof to be weakly, or otherwise defectively executed, during its progress, or upon its completion, whether said weakness or defect proceeded from the quality, size, or form of the materials used, or the manner of their use, to order the said weakness or defect to be remedied in any manner that he might point out, and for that purpose to order the said work or any part thereof to be taken down and rebuilt; when it should be the duty of said Kidwell to take down and rebuild the same. It was further agreed that said Kidwell should commence working upon the bridge at such time as might be designated by said agent, and at all times when required apply his force to such parts of said bridge as the said agent might indicate; and should commence and carry on the stone work so as to prevent any delay in the progress of the graduation connected with the bridge: The said Kidwell agreed to comply with other terms which it is needless to enumerate. For so doing and performing the work aforesaid, the company agreed to pay at the following rates or prices, viz: For every perch of twenty-five cubic feet in the stone work of said bridge four dollars, and for every lineal foot in the length of the superstructure, twenty-three dollars. The payments were agreed to be made in the following manner, viz: During the progress of the work and until its completion, a monthly estimate was to be made by said agent of the quantity character and value of the work done during the month, or since the last monthly estimate, four-fifths of which value were to be paid to the said Kidwell, at such place as the said agent might appoint; and when the work was completed and accepted by the agent, there was to be a final estimate made of the quantity, character and value of the work, agreeably to the terms of the agreement, when the balance appearing to be due to said Kidwell was to be paid to him upon his releasing the company from all claims or demands growing out of the agreement. And it was agreed that the said monthly and final estimates should be conclusive between the parties to the contract; unless the engineer of location and construction might deem it proper at any time to review and alter the monthly or final estimates of said agent; in which event, the estimate of the said engineer was to be substituted in place of the estimate of the agent: it was however, to be wholly optional with the engineer to exercise such power of revision or not.

It was further agreed, that should the company be delayed by legal process, (or from want of funds caused by an inability to procure payment of the subscriptions made by the state of Maryland and the city of Baltimore to the capital stock of said company, & c.) from prosecuting the work, & c. operating to delay or hinder the completion of the work of said Kidwell, such delay or hindrance should not give him any claim to damages against the company, but should entitle him to such an extension of the time allowed for the completion of the work as should in the opinion of the engineer of location and construction, compensate for such delay or hindrance. And should such delay or hindrance amount to such an interference with the work that the company should see fit to annul the agreement, the said Kidwell should be entitled to be paid the full amount of the work actually done by him under the agreement according to its tenor, and no more.

And it was further agreed, that in case the said Kidwell should not perform all the terms stipulated to be performed by him, in manner and form, and within the time mentioned in the contract; or in case it should appear to said agent that the work did not progress with sufficient speed; or in case of interference with said work by legal proceedings; the said agent should have power to annul the contract, & c.; when the agreement on the part of the company should become null, and the unpaid part of the value of the work done, (unless the contract should be annulled in consequence of legal proceedings,) should be forfeited by the said Kidwell, and become the property of the company; and the said company should be at liberty to employ any person in the place and stead of said Kidwell.

Annexed to the said contract, as part thereof, is a paper entitled " Manner and condition, according to which the work must be bid for and executed." In this paper, it is among other things stipulated as follows: " The bridge is to be built of large sized, hard and durable stone, with good natural beds, undressed, except the corner and coping stones, which shall be rough hammered." --" The foundation to be placed upon solid rock, timber, or other material, as may be directed by the engineer; and all the work both under and above water, except in the cases mentioned below, to be laid without mortar, and with large stone well bedded and bonded. The piers" " shall be laid in good mortar made with common lime, above the low water line." --" The preceding general description" " will be subject to modification, & c." --" The bids per perch of twenty-five cubic feet, for bridge and culvert work and dry walling, will include cost of digging and draining foundations, scaffolding, centreing, and all other expenses necessary to the completion of the masonry according to the plans." --" The wooden superstructures to be built of white or yellow pine timber, as the one or the other may be most cheaply obtained, of the best quality, with a few sticks of white oak in each truss frame, according to the plan exhibited in the drawings and models in the company's office in Baltimore. The cast and wrought iron of the skew-backs, bolts, & c. to be of good quality, free from all flaws and other defects, and submitted to such tests as the engineer may require. The bid for the superstructures to be by the running foot, and to include scaffolding, materials and workmanship of every kind, excepting painting the bridge and laying the track on the floor." --" The quantities of masonry and bridging, as here stated, may be changed, at the pleasure of the engineer, by alterations in the grades, curves or plans of any part of the work, and the calculations of quantities will be made anew for final settlement with the contractors; it being understood that if by such changes the average haul of materials is lengthened, or the difficulties of the work are considerably increased, the contractor shall be equitably allowed therefor by the engineer." --" The whole work shall be done under the superintendence of the engineer, in accordance with the plans which will be furnished."

On the 10th of December 1849 the appellant made a contract with the appellees for the construction of a bridge across the north branch of the Potomac river; which contract was similar to the one before mentioned, except that the work was to be completed on or before the first day of January 1841, and the price to be paid for it was four dollars and ninety-four cents (instead of four dollars) per perch for the stone work, and twenty-five dollars (instead of twenty-three dollars) per lineal foot for the superstructure. The estimated quantity of materials required for each bridge was stated in the contracts respectively, and of course very much varied; the bridge across the north branch being much longer than that across the little Cacapon.

The bridges seem to have been commenced shortly after the contracts were entered into respectively; but not to have been completed until June 1842. During the progress of the work, monthly estimates and payments were made, and when the work was completed and accepted, final estimates were made, according to the terms of the contracts; from which final estimates it appeared that the value of the work done:

On the North Branch bridge was

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