Langdon v. Northfield

• Decision Date: 07 February 1890
• Citation: Langdon v. Northfield, 42 Minn. 464, 44 N. W. 984 (Minn. 1890)
• Parties: Robert B. Langdon and others v. John B. Northfield and others
• Court: Minnesota Supreme Court

44 N.W. 984

42 Minn. 464

Robert B. Langdon and others v. John B. Northfield and others

Supreme Court of Minnesota

February 7, 1890

Appeal by plaintiffs from an order of the district court for Hennepin county, refusing a new trial after a trial before Rea, J., and a dismissal ordered at the close of plaintiffs' case.

Order reversed.

J. D Springer, F. D. Larrabee, and H. S. Abbott, for appellants.

L. J Van Fossen and Kitchel, Cohen & Shaw, for respondents.

OPINION

Mitchell, J.

The parties to this action entered into a railroad construction or grading contract of the usual form, by which the defendants were to construct or grade a certain section of a railroad at a specified schedule of prices for the different classes of work, of which 85 per cent. was to be paid monthly on the monthly approximate estimates of the chief engineer of the railway company, the remaining 15 per cent. to be retained until the final estimate after the work was completed.The contract contained the usual provision making the chief engineer of the railway umpire to decide all matters arising or growing out of the contract between the parties, and that his decision should be final and conclusive.It also contained the further provision "that if the second party[defendants] shall at any time neglect or refuse to proceed with the work as fast as, in the opinion of said chief engineer or the first party(communicated in writing to the second party,) may be necessary for the completion by the time specified herein then the first party(plaintiffs) may declare this contract abandoned, and the amount which shall have been retained at the time out of the monthly estimates which have become due at the completion of this contract shall be forfeited to the first party; or the first party may, at their option employ other parties to execute any part of the work, and charge the cost of the same to the second party, to be deducted out of such retained percentage, or out of any payment that shall have become due on any former estimates, or that may become due on any subsequent estimate."The only question presented by the record on this appeal is the correctness of the construction placed by the trial judge upon the last clause of this provision.The construction of the first clause is not here involved, although, as the law dislikes forfeitures, the courts would, if possible, regard it as mere machinery to enable plaintiffs to...