McGregor v. J. A. Ware Const. Co.

• Decision Date: 24 May 1905
• Citation: 87 S.W. 981,188 Mo. 611
• Parties: McGREGOR v. J. A. WARE CONST. CO.
• Court: Missouri Supreme Court

87 S.W. 981

188 Mo. 611

McGREGOR v. J. A. WARE CONST. CO.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

CONTRACTS — CONSTRUCTION — INCORPORATION OF OTHER CONTRACTS — PROVISIONS FOR ARBITRATION — PAYMENT — ACCEPTANCE OF TENDER — ESTOPPEL — APPEAL — THEORY OF CASE.

1. Findings of fact by a referee in a case at law stand upon the same footing in an appellate court as a verdict, and will not be disturbed, if supported by any substantial testimony.

2. A construction contract required the work to be done according to certain "specifications," under which the manner of doing the work and materials to be used were particularly set out. The contract then contained several paragraphs, grouped under the designation of "general stipulations." The contractor's contract with a subcontractor declared the "specifications" of the construction contract to be a part thereof and to govern the same. Held, that the "general stipulations" of the construction contract constituted a portion of the "specifications," within the meaning of the subcontractor's contract, and consequently constituted a part thereof.

3. Specifications of a contract provided for the classification of excavated materials as solid rock, loose rock, and earth, and made the engineer the final judge of the class to which any material should belong. It further provided that, when rock of any kind should be found in the excavations, the contractor should notify the engineer in charge. Held, that the determination of the engineer, classifying material excavated as earth, instead of rock, was conclusive on the contractor.

4. Where a contract with a subcontractor for excavation, at prices fixed according to the character of the material excavated, declared the determination of the owner's engineer as to the classification of the material conclusive, such classification was, in the absence of fraud or mistake on the part of the engineer, binding upon the parties.

5. One who accepts and retains a check for the amount claimed by his debtor to be due him, knowing that it is transmitted as payment in full, is estopped to claim that such payment does not constitute full payment, and cannot apply it as a part payment and sue for the balance claimed by him to be due.

6. Where defendant offered plaintiff a sum of money by way of compromise or equitable settlement, and he refused to accept it, and brought suit for the full amount claimed by him to be due under his contract, without alleging any right to recover the sum offered as compromise, he could not, on failing to establish his claim under the contract, recover judgment for the sum tendered as compromise.

7. A claim or theory, not called to the attention of the referee in any way, or to the trial court on exceptions to the referee's report, is not available on appeal.

Appeal from St. Louis Circuit Court; John A. Talty, Judge.

Action by Thomas McGregor against the J. A. Ware Construction Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Abbott & Edwards, for appellant. Collins & Chappell, for respondent.

MARSHALL, J.

This is an action to recover $4,711.56 for work done by the plaintiff as a subcontractor under the defendant for doing certain excavation in the construction of the St. Louis, Peoria & Northern Railway; the defendant company being a subcontractor under the general contractor with the railroad company. The case was tried by a referee, who found the facts in favor of the defendant and recommended a judgment in its favor. The plaintiff filed exceptions to the referee's report, the circuit court overruled the exceptions, and entered judgment for the defendant, and after proper steps the plaintiff appealed.

The Issues.

The petition is in two counts, but the plaintiff makes no point in this court as to the judgment against him on the second count, and therefore no further notice will be taken of that count.

The first count alleges that on the 28th of May, 1897, the plaintiff entered into a contract with the defendant to do the work required in clearing and grading a portion of said railway at the following prices: "Earth excavation, 9 cents per cubic yard; loose rock, 30 cents per cubic yard; clearing, $20 per acre; overhauling, ½ cent per cubic yard for each additional 100 feet after the first 300 feet of overhaul — the specifications of the Laclede Construction Company being part of and governing said agreement, and a copy of said specifications being herewith filed as Exhibit A." The petition then alleges that under said contract the plaintiff excavated 22,436 yards of loose rock, for which defendant had agreed to pay at the rate of 30 cents per cubic yard, or a total of $6,730.80, and that the defendant had only paid plaintiff on account thereof the sum of $2,019.24, leaving a balance due of $4,711.56, for which the plaintiff asked judgment.

The answer is a general denial of all matters not expressly admitted. The answer then admits the execution of the contract referred to in the first count of the petition and the performance thereof by the plaintiff, and then sets up that among the specifications in the contract of the Laclede Construction Company, which was made a part of plaintiff's contract, it was provided as follows: "Classification of Materials. The materials found in the excavation will be classed as solid rock, loose rock, and earth; the chief engineer being, in every case, the final judge as to the class to which any material belongs. Solid rock will include all loose boulders containing one cubic yard or more and all hard rock in compact strata or ledges exceeding six inches in thickness, which, in the judgment of the engineer cannot be loosened except by blasting. Loose rock will include all loose boulders containing more than three cubic feet and less than one cubic yard, and all materials requiring the use of pick and bar, or which cannot be plowed with a strong 10-inch grading plow, well handled, drawn by a good six-horse team. Earth will include all material of whatever kind which does not clearly belong to one or the other of the foregoing classes. Whenever rock of any kind is found in the excavation, the contractor shall at once notify the engineer in charge, so that he may make the necessary measurements to determine its quantity. If the contractor shall fail to give such notice, the engineer may presume that the measurements taken at the time he first sees the material in question will give the true quantity. In case disputes or differences shall arise between the parties to this agreement as to the true intent and meaning thereof, or the sufficiency of the performance of any of the work to be done under it, or the classification of the work, or the price to be paid, all disputes and differences shall be referred to the chief engineer of the construction company, who shall consider and decide the same, and his decision shall be final and binding upon both parties." The answer further alleges that Robert Moore was the chief engineer in charge of the work, and was the engineer referred to in the contract and specifications, and that he made his final estimate of the work done by the plaintiff, and classified the materials and allowed the plaintiff for excavation 9 cents per yard for earth excavations, and awarded to plaintiff a total sum of $21,298.98 as the full amount which the plaintiff was entitled to under his contract, and that the defendant paid the same to the plaintiff after the work was done; that said chief engineer found that all the excavation done by the plaintiff under his contract was earth excavation, and that none of the materials excavated by the plaintiff consisted of loose rock; and the defendant claimed that the final estimate and finding of the chief engineer was final, binding, and conclusive upon both of the parties to said contract.

The reply to the answer is a general denial.

The case was referred to a referee to try all the issues and report. The referee reported, set out the contract between the plaintiff and defendant and the portions of the specifications contained in the contract of the Laclede Construction Company, which were made a part of the plaintiff's contract, and that the plaintiff had fully performed his contract, and that the defendant had paid him therefor the sum of $21,298.98. The referee then reported as follows: "There is no controversy between the parties respecting the quantity of materials excavated by the plaintiff, or the quantity hauled more than 300 feet, nor respecting the prices for the various kinds of materials or other work done by the plaintiff, nor respecting payments made to plaintiff by defendant; but the plaintiff contends that 22,436 cubic yards of the materials excavated by him was loose rock, for the excavation of which he was entitled to 30 cents per cubic yard, whereas defendant contends that none of said materials was rock, but that all of it was earth. Defendant paid the plaintiff the contract price for excavating earth, and unless some of the material was loose rock the plaintiff has been paid in full. I find that plaintiff excavated no loose rock, but all material excavated by him was earth; that prior to the bringing of this action defendant paid the plaintiff in full for all work done by him in accordance with said contract of May 29, 1897, and as set forth in the answer of defendant, and in accordance with the classification and final estimate of the engineer, as provided in the specifications which form a part of said contract. I further find that Robert Moore was the chief engineer referred to in said specifications, and that Robert H. Cole was his assistant resident engineer in charge of the work done by the plaintiff. Both Mr. Cole and Mr. Moore, the said engineers, decided that plaintiff had excavated no loose rock, but that all material excavated by him was earth." The referee thereupon recommended judgment for the defendant.

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