Nelson v. Fairchild & N. E. Ry. Co.

• Decision Date: 14 March 1916
• Citation: 156 N.W. 943,163 Wis. 300
• Court: Wisconsin Supreme Court
• Parties: NELSON ET AL. v. FAIRCHILD & N. E. RY. CO. ET AL.

163 Wis. 300

156 N.W. 943

NELSON ET AL.

v.FAIRCHILD & N. E. RY. CO. ET AL.

Supreme Court of Wisconsin.

March 14, 1916.

Appeal from Circuit Court, Eau Claire County; James Wickham, Judge.

Action by Peter Nelson and others, doing business together as Peter Nelson & Foley Bros., against the Fairchild & Northeastern Railway Company, a corporation, and another. Judgment for plaintiffs, and named defendant appeals. Affirmed.

This action was brought to recover under a railway construction contract for completing a certain part of a railroad. The dispute is as to the balance due the plaintiffs and to enforce a lien against the property. The court found substantially as follows:

(1) That on the 15th day of March, 1912, a contract for construction was made between plaintiffs and defendant railway company.

(2) On March 22, 1912, the plaintiffs contracted with the defendant Jacobson, by the terms of which Jacobson was to do a part of the work as subcontractor.

(3) That pursuant to the contract between plaintiffs and the defendant railway company plaintiffs and certain subcontractors, including the defendant Jacobson, entered upon the performance of the work in April, 1912, and thereafter performed all the conditions of the contract in manner provided therein to the satisfaction of the president of said railway company and its chief engineer, which work was completed on or about November 17, 1912, except the portion thereof performed by said Jacobson, which was completed on or about February 18, 1913, but no damages are claimed by the defendant railway company for failure of plaintiffs and their subcontractors to complete the work within the time required by the contract.

(4) That in the performance of said work under said contract with said railway company plaintiffs and their subcontractors performed the work and earned, at the prices specified in the contract, the respective amounts hereinafter stated:

+-----------------------------------------------------------------------------+
                ¦Clearing 38.49 acres, at $25.00 per acre                         ¦$ 962.25   ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Grubbing 648.68 sq. rds., at $1.00 per sq. rd.                   ¦648.68     ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Piling 10,861 lineal ft., at 20c per lin. ft.                    ¦2,172.20   ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Timber work, 183,415 feet, at $11.00 per M. feet                 ¦2,017.56   ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Hauling and placing culvert pipes, 4,624 lineal feet, at 43c per ¦1,988.32   ¦
                ¦ft.                                                              ¦           ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Excavating earth, 333,303 cu. yds., at 20c per cu. yd.           ¦66,660.60  ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Excavating loose rock, 9,575 cu. yds., at 35c per cu. yd.        ¦3,351.25   ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Excavating sand rock, 62,837 cu. yds. at. 40c per cu. yd.        ¦25,134.80  ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Overhauling 749,801 cu. yds., at 1 1/4 per cu. yd.               ¦9,372.51   ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Extra work of plaintiffs as per finding No. 5                    ¦118.67     ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Extra work of Jacobson as per finding No. 6                      ¦91.00      ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Making a total amount earned for the work above specified        ¦$112,517.84¦
                +-----------------------------------------------------------------------------+
                

(5) That in the performance of said work plaintiffs performed extra work in pursuance of an order of the chief engineer of defendant railway company, in changing the line of said road at station 771 to 773, and expended in the performance of said work $178.67, which is a reasonable price therefor, no part of which has been paid, except $60, leaving a balance due plaintiffs for said work of $118.67.

(6) That in July and August, 1912, the defendant Jacobson performed extra work for said railway company in repairing and improving its right of way pursuant to an order of the chief engineer of said railway company, to the amount and reasonable value of $91, no part of which has been paid; that said order for the performance of said work was not by any express words affirmed by the president of said railway company, but said railway company under circumstances making it chargeable with notice of the facts received the benefit of the work, made no objection thereto, and waived the provisions in the contract requiring the order therefor to be affirmed by its president.

(7) That between stations 365 and 395 said defendant Jacobson hauled material from excavations a longer distance than 2,600 feet, the limit of overhaul provided for in said contract, the amount of which material so hauled beyond said limit, if computed according to said contract, had no limit of haul been therein prescribed, would have amounted to 27,495 cubic yards of overhaul; that said work was performed at the request of the chief engineer of said railway company and on his promise that said railway company would pay therefor; that said order of said chief engineer was not affirmed by the president of said railway company and the provision of the contract on that subject was not waived; that said 27,495 cubic yards is not included in the overhaul included in finding No. 4, but that credit is there given for hauling all of said material to the limit of the overhaul.

(8) That the plaintiffs, in excavating rock in the cut at stations 401 to 417, removed 2,181 cubic yards of rock of the character indicated by Exhibits 6a and 6b, which are in evidence, and the defendant Jacobson, at a cut located at stations 481 to 490, removed from an excavation a quantity of rock amounting to 4,148 cubic yards of the character indicated by Exhibits 11c and 11d; that said respective parties claim that said rock is hard rock within the terms of the contract, and offered evidence tending to show that it is customary for engineers engaged in classifying such rock to classify it as hard rock, but the court finds that all such rock in fact is hard rock, and none of it harder than sand rock; and that such parties did not in the performance of their work remove any hard rock as that term is defined by the contract.

(9) That prior to the commencement of this action the defendant railway company paid to plaintiffs on account of the work performed under contract $97,624.38.

(10) That the portion of the work included in the foregoing findings which was performed by the defendant Jacobson at the prices he was entitled to and the amount...