Newell Contracting Co v. J. F. &. J. D. Blankenshi P
| Decision Date | 13 November 1924 |
| Docket Number | (No. 11608.) |
| Citation | 125 S.E. 420 |
| Court | South Carolina Supreme Court |
| Parties | NEWELL CONTRACTING CO. v. J. F. &. J. D. BLANKENSHI P. |
Appeal from Common Pleas Circuit Court of Greenwood County; R. E. Babb, Special Judge.
Suit by the Newell Contracting Company against J. F. & J. D. Blankenship. Judgment for defendants, and plaintiff appeals. Affirmed.
R. C. Coleman of Rogersville, Tenn., and Mays & Featherstone, of Greenwood, for appellant.
Grier, Park & McDonald, of Greenwood, for respondents.
This is a suit upon two causes of action, aggregating $8,940.89, which amount is claimed by the plaintiff to be due by the defendants, on account of the transactions hereinafter detailed. For convenience, the plaintiff, Newell Contracting Company, will be referred to as Newell, and the defendants J. F. & J. D. Blankenship, as Blankenship.
In July, 1916, a large road-building contract, covering several roads, was awarded upon competitive bids by the board of pike commissioners of Hawkins county, in the state of Tennessee (hereinafter referred to as commissioners), to Newell, who gave a surety bond in the sum of $S0, 000, for the faithful performance thereof. The compensation to Newell was based upon the quality, quantity, and haul of material moved in excavations and fills. Monthly estimates were to be made by the engineer employed by the commissioners, and advances to the extent of 90 per cent. thereof were to be paid to Newell; the remaining 10 per cent. was to be retained until final remeasurement and settlement.
Shortly after the contract was awarded to Newell, he sublet about 16 miles of the roads, exclusive of bridge and culvert work requiring masonry, to Blankenship, who was present and participated in the bidding for the entire contract. There is some conflictin the argument as to the terms of the subletting contract, but we are satisfied from the evidence, that Blankenship undertook to carry out Newell's contract with the commissioners, in respect to the portion of the job which Newell had sublet to him, according to its terms.
As Newell received monthly advances of 90 per cent. of the estimates of the engineer upon the work assumed by Blankenship, he paid to him 80 per cent. thereof, retaining, according to their agreement, 10 per cent. as his profit on the subletting, and the 10 per cent. originally provided to be retained by the commissioners. This last-mentioned 10 per cent. was due to be paid by Newell to Blankenship, when the work should be finally completed and accepted. This arrangement having been made by Newell and Blankenship, the work progressed for about a year; payments being made by the commissioners to Newell on the monthly estimates of the engineer, and by Newell to Blankenship, as per the agreement, at the end of which time Blankenship had received $24,-699.38.
The commissioners had an engineer by the name of Cornwell in charge of the entire work, and a subengineer by the name of Buley had immediate supervision of the Blankenship portion of the work, under whom and whose instructions Blankenship operated. The defendants offered evidence tending to show that the work assumed by them was fully completed and accepted by Buley.
About this time friction arose between Newell and the commissioners; the latter charging that there had been collusion between Cornwell and Newell, which resulted in gross overestimates of the work as it progressed. They accordingly engaged another engineer by the name of Williams to remeas-ure, resurvey, re-estimate, and reclassify, the entire work, who reported that, based upon a completed job for the entire work, Newell had been overpaid to the extent of $39,853.-95, and that the total amount due to be paid by the commissioners on that part of the work sublet to Blankenship was $20,171.87.
The commissioners then, in the name of Hawkins county, brought suit against Newell for the $39,853.95 overpayment. Newell countered with a suit for damages on account of the breach of a certain part of the contract, covering the macadamizing of certain roads.
In the suit for overpayment, the county recovered a judgment against Newell for the full amount of its claim, $39,853.95, and, pending an appeal, the two matters were compromised, Newell withdrawing his suit for damages, and the county accepting $30,-000 in settlement of the judgment.
Newell asserts that, when the controversy arose between him and the commissioners, Blankenship had not completed his work and quit the job, leaving unfinished work which cost him $2,396.20 to finish. After Newell had settled with the county for the judgment on account of overpayment on the entire job, including the part covered by the Blankenship contract, Newell demanded of Blankenship a return of what represented the overpayment on his contract.
Williams, as stated, had reported: That the amount due Newell on the Blankenship portion of the roads was $20,171.87. Of this Blankenship, under his contract with Newell, was entitled to 90 per cent., $18,154.69. Blankenship had received $24,699.39, and therefore had been overpaid $6,544.69. That the cost to Newell of the unfinished work was $2,396.20. Total claim $8,940.89.
The complaint contains two causes of action—the first, the above balance of $6,544.-69; and the second, the cost of unfinished work, $2,396.20.
In their answer the defendants deny their liability upon both causes of action. They allege collusion between Newell and the engineer, by which the work was overestimated; that the greater bulk of the overestimate was on work outside of the Blankenship contract; that the plaintiff is estopped from claiming a return of any part of said overpayment from the defendants; and that the measurements of the defendant's work, made at the time of doing the work, were approximately correct. They also set up a counterclaim for the retained 10 per cent. of $2,468.93. Exactly how this amount was arrived at does not appear in the record for appeal. If the amount paid Blankenship, $24,699.38, represents 80 per cent. of the total contract, that total would be $30,874.-22, 10 per cent. of which would be $3,087.42.
The jury returned a verdict of $72.73 in favor of Blankenship, evidently disregarding the plaintiff's first cause of action for the overpayment, and allowing the second for the cost of completing the work. Thus:
----------------------------------
|Counterclaim |$2,468 9S|
|----------------------|---------|
|Second cause of action|2, 396 20|
|----------------------|---------|
|Verdict |$72 73 |
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The exceptions raise the following questions: (1) Did the complaint present an equitable cause of action entitling the plaintiff to a trial according to the forms of equity procedure? (2) Was there error in the admission of evidence? (3) Was there error in the exclusion of evidence? (4) Was there error in charging the jury that the litigation in Tennessee between Hawkins county and Newell was not binding upon the Blanken-ships? (5) Was there error in submitting to the jury issues of fact which were admitted, or as to which there was no opposing evidence? (6) Was there error in submitting to the jury the issue of fraud raised in the pleadings, as to which the plaintiff contends there was no evidence?
As to the first question: Did the complaint present an equitable cause of action entitling the plaintiff to a trial according to the forms of equity procedure?
Counsel on both sides appear to have been confused at the post as to the character of the action, and both, at the trial, shifted their positions. Counsel for the plaintiff docketed the case on calendar 1, and at the bar meeting the case, presumably with their knowledge and consent, was set down on the roster as a jury case. Counsel for the defendants gave notice of a motion to frame issues, which is appropriate only in equity cases. At the trial, counsel for the plaintiff moved to refer the ease as an equity case. Counsel for the defendants did not press their motion for issues, and insisted that the case was a law case, properly on calendar 1 for a jury trial. The presiding judge refused the plaintiff's motion for a reference, and ordered the case on for trial before a jury.
It will be necessary to consider separately the two causes of action alleged in the complaint, in determining whether either states an equitable cause of action entitling the plaintiff to an equitable form of trial. The first cause of action is based, not upon an allegation of fact that the estimates, upon which the defendants were paid $24,669.38, were grossly in excess of the work actually done, but upon the fact that it had been so adjudicated by the Tennessee court. The allegation of the complaint is:
"That thereafter the Pike commissioners caused a resurvey and a new estimate of the work to be made, and claimed and established as a fact, by conclusive proof produced in the chancery court of Hawkins county, Tenn., that the work done on the roads being constructed by the defendants had been grossly overestimated, and that the total and final amount due to have been paid to plaintiff after completion of the roads, then in an incomplete condition, was only $20,171.87;" that the commissioners obtained a judgment against the plaintiff, etc.
Under this allegation, the right of the plaintiff to recover the overpayment depended upon the conclusiveness of the judgment in the Tennessee court. But, assuming, what seems to be conceded by the defendants that the plaintiff had the right, notwithstanding the form of the complaint, to go into the facts and show by evidence in detail that the resurvey of Williams was correct (a fact, by the way, which he had denied in the Tennessee litigation), and that therefore an overpayment had been made to Blankenship, his cause of action was plainly one at law, and not in equity.
The complaint is one for the recovery of money only. It asks for no other relief; it is based upon the contract...
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