Lafayette Ry. Co. v. Tucker

• Decision Date: 08 February 1900
• Citation: 27 So. 447,124 Ala. 514
• Parties: LAFAYETTE RY. CO. v. TUCKER ET AL.
• Court: Alabama Supreme Court

27 So. 447

124 Ala. 514

LAFAYETTE RY. CO. v. TUCKER ET AL.

Supreme Court of Alabama

February 8, 1900

Appeal from circuit court, Lee county; J. M. Carmichael, Judge.

Action by J. A. Tucker and others against the Lafayette Railway Company. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendant appeals. Affirmed.

This action was brought by the appellees J. A. and L. C. Tucker against the Lafayette Railway Comapny. The complaint, as originally filed, contained but one count. After demurrers were sustained to this count, the complaint was then amended so as to read as follows: "The plaintiffs claim of the defendant ninety-six dollars due by account for work and labor done on or about June 1, 1896, at the request of defendant, for defendant corporation by them, which was due October 1, 1896, together with the interest thereon." The complaint was further amended by adding a second count which was in words and figures as follows: "(2) The plaintiffs claim of the defendant ninety-six dollars due by account for work and labor done for defendant corporation by them on or about June 1, 1896, and which was accepted and used by the defendant, which was due October 1, 1896 together with the interest thereon." To the first count as amended, the defendant demurred upon the ground that it fails to aver that the work and labor was done at the instance or request of the defendant, or was accepted by it. To the second count of the complaint the defendant demurred upon the grounds: (1) That it shows no cause of action against the defendant; (2) that it fails to show that the work or labor alleged to have been done was at the defendant's request. These demurrers were each overruled and the defendant duly excepted. The action was brought to recover the value of certain work done by the plaintiffs on the line of the defendant's railway while the same was being constructed. One of the plaintiffs testified that this work was done at the request of one J. L. Cowan, who was agent and civil engineer in the employment of the defendant company; and that the work done by plaintiffs consisted in digging deeper certain cuts, and of raising higher certain fills, under the following circumstances, to wit: While plaintiffs were engaged as subcontractors of Allen, Andrews &amp Moorefield, who were contractors with the Lafayette Railway Company for the construction of a portion of said railroad, and were at work on said railroad, that said Cowan said to him there was a cut there he wanted dug deeper, and some fills he wanted raised higher, and that the company would pay him for it; that Cowan directed him how to do this work, and he did it according to said instructions; that at the time Cowan directed plaintiffs to do this work they were working as subcontractors under Allen, Andrews & Moorefield, under a contract in writing, which appears in the bill of exceptions, and which provides that plaintiffs should be paid for such work at the rate of eight cents per cubic yard of material moved, roadbed measure, and that said work was to be performed as directed by the engineer (who it was admitted was J. L. Cowan), and that the amount due at any time to plaintiffs should be determined by the estimates of said engineer. The evidence of this witness and another further showed that the said Cowan was the chief engineer of the defendant company; that he surveyed, laid off, and staked out the line of the road; that he superintended the construction of it, and ordered such changes in grading and curves and construction as he saw fit. This was substantially all the evidence tending to show authority on part of said Cowan to make any contracts for the defendant company. During the examination of L. C. Tucker, one of the plaintiffs, and after he had testified to their employment by Cowan, the civil engineer of the defendant, he was asked the following question: "What did he [Cowan] say to you when he told you to do the work?" The defendant objected to this question, because it called for illegal, irrelevant, and immaterial testimony. The court overruled the objection, and the defendant duly excepted. The witness answered the question, stating that Cowan said to him there was a cut there he wanted dug deeper, and some fills he wanted raised higher, and that the company would pay him for it. The plaintiff then asked this witness the following question: "What work did you do?" The defendant objected to this question, because it called for illegal, irrelevant, and immaterial testimony, and duly excepted to the court's overruling his objection. The witness then testified as to what work was done, and the value of the work, and that Cowan directed him how he should do this work, and he did it according to the directions of Mr. Cowan. The defendant moved to exclude this testimony of the witness upon the ground that no such relation was shown to exist between Cowan and the defendant as would authorize Cowan to bind the defendant by any contract made with either one of the plaintiffs. The court overruled this motion, and the defendant duly excepted. W. B. Tucker, being examined as a witness for plaintiffs, testified that he was the father of both of the plaintiffs; and was then asked by plaintiff if he ever had any conversation with Mr. Cowan relative to the extra work done by his sons. To this question defendant objected on the grounds that it was illegal, and called for irrelevant and hearsay testimony, which objection, being considered by the court, was overruled, and the witness permitted to answer this question. To this action of the court in overruling this objection defendant then and there duly excepted, and witness, answering said question, said: That he had a talk with Mr. Cowan during the month of May, after his boys had commenced the extra work, and before they finished it. That they commenced this work the week before he saw Cowan at his house. That he went to Cowan's house, and asked him if he was authorized to have that work done. Cowan said he was, and further said: "I am chief engineer of the Lafayette Railway Company. When the work is done, will take it up, and the company will pay for it." Said he wanted the grades cut down a little bit, and he wanted the fills raised. Said it was extra work. That the grade was too heavy, and he wanted it cut down. Defendant moved to exclude the conversation above related between witness and Cowan, on the ground that the same was illegal, irrelevant, and immaterial, and hearsay, and because no such relation between defendant company and Cowan was shown as would authorize the...