Owen v. Giles

• Decision Date: 22 November 1907
• Docket Number: 2,528.
• Citation: 157 F. 825
• Parties: OWEN v. GILES et al. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

157 F. 825

OWEN v. GILES et al. ^[1]

No. 2,528.

United States Court of Appeals, Eighth Circuit.

November 22, 1907

This was an action by Owen Bros. against Giles and Glassie to recover moneys paid other parties to complete contracts which defendants had undertaken to perform. The trial resulted in verdict and judgment for defendants, which this writ of error is brought to review. The material facts are as follows: The Chicago, Milwaukee & St. Paul Railway Company contracted with McIntosh Bros., railroad contractors, for the construction of a line of road in Iowa. McIntosh sublet a portion of the work (earth work for the roadbed) to the plaintiffs. The plaintiffs then sublet to defendants two distinct portions of the work which they had contracted with McIntosh to do. The first contract between plaintiffs and defendants, dated September 27, 1901 was made as follows: The plaintiffs wrote defendants inclosing a copy of their contract with McIntosh, with slight changes in prices, etc., to adapt the pertinent parts of it to the matter in hand, and proposed to sublet to defendants a part of the work. It was stated in the letter that defendants, if they accepted the proposition, were to assume and perform 'all conditions, promises, guaranties covenants, obligations, liabilities, and forfeitures' of the McIntosh contract. The defendants accepted the proposition. The document inclosed in the letter was in form the ordinary railroad construction contract, and it covered other work than earth excavation, as, for instance, bridges and culverts. The form of contract inclosed contained the following provisions: 'The contractor further agrees to commence said work within twenty days from the date hereof and to prosecute said work with such forces and means as will, in the opinion of the chief engineer of the railway company, insure the completion thereof on or before August 1, 1902'; also 'the railway company may, however, if it so elects, do grading with its own forces and outfits where, in the opinion of its chief engineer, it is impracticable for the contractor to do the work'; also that, if in the opinion of the chief engineer the contractor failed to comply with any of the stipulations to be performed by him, the railway company should have the right, by its general manager, to cancel the contract and declare it void; also that, if the contractor should at any time neglect or refuse to progress with the work as fast (in the opinion of the chief engineer communicated to him in writing) as might be necessary for its completion by the time specified, the railway company might, by its general manager, declare the contract abandoned and forfeit the amounts retained from monthly estimates, or that the company might, at the option of its general manager, employ others to execute any part of the work, charge the cost to the contractor, and deduct the same from retained percentage or from any payment that should become due on former or subsequent estimates. This last provision seems by its terms to apply to cases where the contractor is not already in default, but the chief engineer is of the opinion he will not complete the work within the time prescribed. It was also provided that the chief engineer might delegate his authority to assistants and inspectors.

The second contract, dated July 3, 1902, covered another portion of plaintiffs' work. It did not expressly embody and contained no reference to the McIntosh contract as was the case with the first one. It was specifically completed October 1, 1902. The evidence tended to show that on August 1, 1902, but about one-third of the work under the first contract was completed, and on October 1, 1902, about one-half of the work covered by the second contract was completed. During the summer of that year the local engineer of the railway company, its division engineer, McIntosh, the principal contractor, and the plaintiffs urged defendants to increase their force of men and teams. On September 13, 1902, the division engineer wrote to McIntosh, advising him that no work was being done between certain stations covered by defendants' subcontract, and that, unless forces were put upon the work at once, it would not be finished by contract time. McIntosh was directed to take the matter up with the subcontractors, and have the forces increased as soon as possible. About October 1, 1902, some witnesses say a few days before and others a few days afterwards, McIntosh, with plaintiffs' consent, put upon the work covered by defendants' two contracts a force of men, teams, and tools, and thereafter work was done by them alongside and with defendants' outfit until the two contracts were completed January 13, 1903. There was evidence tending to show that the additional force was put upon the work with defendants' consent; also evidence that it was against their protest. The additional work done to hasten the completion of the contracts was termed 'force work,' as distinguished from that done by the defendants. The cost of the force work, and we include therein that done by a contractor named Cuddington, was paid by McIntosh, and charged to plaintiffs at rates that were reasonable and usual for the season. It was not shown by plaintiffs that the letter of direction from the division engineer to McIntosh was conveyed to defendants. When the entire work that should have been done by defendants was completed and measured up, it was found that at contract rates it came to $18,873.92. There had been paid to defendants as the work progressed $15,410.74. There was paid to Cuddington for force work $2,673.20, and by McIntosh for other men and teams $10,532.26, making a total paid to defendants and for assistance in completion of the contracts of $28,616.20, a balance of overpayment, as is claimed by plaintiffs, of $9,742.28. Though there is some confusion in the figures, it will do to say that plaintiffs sought to recover the excess of payments over contract price. There was another cause of action upon a promissory note for $400, the defense to which was payment. At the trial of the case there was practically no dispute as to the amount the total work came to or as to the various payments to defendants and others on account thereof, excepting that it was claimed that in the settlement of the force work account between McIntosh and the plaintiffs the latter were allowed a rebate in a substantial sum. In the complaint the plaintiffs set forth the facts concerning the contracts, the failure of defendants to complete within the contract periods, the doing of the force work, that defendants consented thereto, the various amounts and their payment. At the conclusion of the trial, the case had taken such a turn that it was practically submitted to the jury upon the question whether defendants had consented to or protested against the doing of the force work, and upon that question the jury found for defendants. They also found, as directed by the court, that the note for $400 had been paid.

H. C Brome (A. H. Burnett and J. W....