Louisville v. Donnegan

• Decision Date: 26 May 1887
• Citation: 12 N.E. 153,111 Ind. 179
• Parties: Louisville, E. & St. L. Ry. Co. v. Donnegan and others.
• Court: Indiana Supreme Court

111 Ind. 179

12 N.E. 153

Louisville, E. & St. L. Ry. Co.

v.Donnegan and others.

Supreme Court of Indiana.

May 26, 1887.

Appeal from circuit court, Vanderburg county.

Iglehart & Taylor, for appellant. Buchanan, Gooding & Buchanan, for appellees.

Zollars, C. J.

In April, 1881, appellees, as partners, entered into a written contract with the railway company for the construction of a certain section of its road in the state of Illinois. It was therein agreed that the work should be completed on or before the first day of August, 1881. It was expressly stipulated that time should be of the essence of the contract. Appellees undertook to do all the grading, masonry, and all such other work as might be necessary to construct the stipulated section of the road, in accordance with the specifications, made a part of the contract, as they might be applicable, and agreeably to the directions of the engineer in charge of the work, given from time to time during the progress of the work. The work was to be paid for by the company, upon monthly and final estimates made by its engineers, and it was expressly stipulated that the estimates thus made by the engineer in charge of the work should be conclusive, as against appellees, “without further recourse or appeal.” The chief engineer might review those estimates, and, if he did so, his estimates were to be substituted for the estimates reviewed. For extra work the company was to pay the cost and 10 per cent. additional. The extra work was to be estimated by the company's engineer, and these estimates were also to be final and conclusive as against appellees. Appellees were to employ such a force of workmen as the engineer might deem adequate to the completion of the work within the time fixed. If they did not employ such a force as the engineer might thus deem adequate, he might employ such number of workmen as in his judgment would be necessary, and at such wages as he might find necessary and expedient, pay all such persons, and charge appellees with the amount as so much money paid to them upon the contract. Power was also given to the company's chief engineer to annul the contract, upon a written notice to appellee, if, in his judgment, the work was not prosecuted by them in a proper manner, and with sufficient speed. It was also stipulated that upon 30 days' notice to appellees the company might at any time, without cause, annul the contract; in which event they should be entitled to pay for work done up to that time. The right was reserved to the company's chief engineer to order, in writing, any modification or alteration to be made in the specifications, profiles, and plans, and in like manner to direct and order the omission of any portion of the work mentioned in the specifications, or to substitute any other work for such portions. If he should determine upon earth-works, bridges, culverts, walls, or other work in addition to that embraced in the contract, appellees were bound to do such work for the prices agreed upon for like work, and upon the same terms and conditions, except with regard to the time of completing the work, which might be reasonably extended, at the discretion of the chief engineer.

The first paragraph of appellees' complaint was based upon that contract, and its violation by appellant. It is alleged herein that appellees began the work at once, furnished material, and continued to construct the road under the contract, until in August, 1881, when the railway company, without right and against their will, took charge of the work, and prosecuted the same to completion; that they, without fault on their part, were prevented from completing the section of road specified in the contract within the prescribed time, because of the company failing to procure the right of way, because of extra work ordered by the engineer, because of the engineer failing to furnish the height, centers, and specifications of bridges and culverts, because of changes in the work ordered by the engineer, and because of the incompetency of the engineer; that, after the work was taken out of their hands, the company prosecuted the same at a reckless and exorbitant cost, far in excess of what was required or necessary; that, subsequent to the written agreement, the amount to be paid by the company per cubic yard for earth was fixed by a parol agreement; that in the final estimate the amount returned by the engineer as due to appellees for earth-work done by them was too small, giving the figures; that the engineer ordered and directed that the piling for bridges should be of a certain length; that, being ignorant as to the proper length required, they obeyed, and under the contract were compelled to obey, the instructions of the engineer; that after the piling was furnished the engineer ordered them to be shortened, and in the final estimate allowed appellees only for the amount of lineal feet actually used, and neglected and refused to allow them for the amount so cut off; that an excessive, unwarranted, and fraudulent amount was charged against appellees by the engineer for placing bridge and culvert timbers, furnished by them before their discharge from the work, which amount the engineer in his final estimate deducted from the amount due to them; that subsequent to the written agreement it was orally agreed between the parties that appellees should be allowed two dollars per thousand feet extra on a large amount of bridge and culvert timbers,because the same was purchased by them at an extra cost, at the request of the company through its proper officers; that, in the final estimate by the engineer, said extra amount so agreed upon was not allowed to appellees; that the company ordered the appellees to remove their pile-driver some six miles beyond the section, to do extra work, and agreed to pay for such removal and extra work, and that the amount agreed upon was not returned by the engineer in his final estimate; that by the failure of the company to procure right of way, and the failure of the engineer upon the request of the appellees to furnish heights and centers, and to lay out the work, their men were left idle, to their damage in a large sum, giving the amount; that in the final estimate the engineer did not return the full amount due to appellees for iron furnished by them. It is averred that the engineers in charge of the work, whose orders appellees were bound to obey, and who made the monthly and final estimate, were incompetent and unfit for the duties assigned them; that appellees were not allowed to inspect either the monthly or final estimates; and that, acting in collusion with the company, the engineer, at the time knowing that their estimate was too low, and false and fraudulent, made them do as they did for the purpose of cheating and defrauding appellees.

Another written contract, similar in all essentials to the above-mentioned, except as it had reference to other sections of the road, was entered into by the parties at about the same time for the construction of another section of the railroad in the state of Illinois; that contract provided that the work should be completed on or before the first day of August, 1881. The second paragraph of appellees complaint was based upon that contract, and its violation by appellant. The wrongs charged upon appellant in that paragraph are of the same nature as those charged in the first paragraph, and were charged in substantially the same way.

In June, 1881, a third written contract was entered into between the parties for the construction of certain sections of the road in the state of Indiana. That contract, again, was similar in essentials to the others, except as it had reference to other sections of the road. The third paragraph of appellee's complaint was based upon that contract, and violation of it by appellant. And here, again, the wrongs charged upon appellant are of the same nature, with the exception of some additional charges as to stone, etc., as those charged in the first paragraph of the complaint, and were charged in substantially the same way.

The fourth paragraph of the complaint is based upon the three contracts above mentioned, and alleges that they all related to the work upon the same road, and in fact constituted but one contract, and were so treated by the parties; that payments were made upon all three indiscriminately; that the accounts were so kept by the railway company and the appellees that amounts due to them upon and under any one of the separate contracts could not be distinctly ascertained; that the work done and material furnished by appellees up to the time when the work was wrongfully taken charge of by the railway company amounted to $80,000; that if they had been allowed to complete the work under the contract as they would have done but for the wrongs of the railway company, which are stated as in the other paragraphs, there would have been due to them from the railway company $96,000; that the fair and reasonable cost of furnishing the materials and doing the work according to the contract would not have exceeded $65,000; that appellees were entitled to recover the difference between that amount and $80,000, for materials furnished and work done under the contract, and $5,000 profits, which would have been made by them on the work done and materials furnished by the railway company in the completion of the work, etc.

It is sufficient here to state that the answers by appellant generally and specially denied all indebtedness, and all charges of wrong against it and its engineers and agents, and all charges of mistake and incompetency on the part of its engineer, whether as connected with estimates or otherwise. They further charged that the failure on the part of appellees to complete the work within the time fixed was caused by their own neglects and wrongs; that the company made liberal advances to them as the work progressed; and that they...