Price v. Garland.

• Decision Date: 13 April 1885
• Parties: PRICE and othersv.GARLAND.
• Court: New Mexico Supreme Court

3 N.M. 505

6 P. 472

PRICE and others

v.GARLAND.

Supreme Court of the Territory of New Mexico.

Filed April 13, 1885.

Appeal from the Second judicial district court, Bernalillo county.

Books or writings in the nature of memoranda can be referred to in order to refresh the memory only by the person in whose handwriting they are.

Childers & Fergusson and Catron, Thorton & Glancy, for appellees.

Neill B. Field and Warren Bristol, for appellant.

AXTELL, C. J.

This was a suit for breach of contract, and is in form an action of trespass on the case. It appears from the record that on the first day of April, 1881, John R. Price, for himself and his co-plaintiffs, entered into a contract with the Atlantic & Pacific Railroad Company to perform certain work in the construction of said company's line of railroad, consisting of grubbing, clearing, grading, and masonry; also to furnish material, and to complete the roadbed and prepare the same to receive the superstructure, or ties and rails. This contract is very minute in its specifications as to the character of the work, and the mutual rights liabilities of the parties thereto. It was provided that the work should be completed on or before November 1, 1881. On the same day that their contract was made, said Price and his associates (the plaintiffs herein) entered into a contract with the defendant, Garland, by which said defendant agreed to do 15 miles of the work which Price and his associates had undertaken to do for said railroad company. Plaintiffs' claim in this suit is based upon the allegation that the defendant wrongfully abandoned the work which he had contracted to do, and left the same uncompleted; that they were compelled to complete the same at a cost greatly exceeding the contract price for which the defendant undertook the same, whereby they were damaged, etc.

Defendant pleaded the general issue, “not guilty,” and two special pleas, the first of which, in substance, set up and averted that the said contract between Price and the railroad company became and was a part and parcel of the contract between Price & Co. and the defendant, and that he (the defendant) did not fail or refuse to perform his contract, or in any way violate any of the provisions, conditions, or specifications of the contract of Price with the railroad company under which the work in question was to be done; that neither the plaintiffs nor any one for them ever gave him any notice such as Price & Co. were entitled to under their contract; and that the plaintiffs wrongfully entered upon and completed the work which he had engaged to do, without any notice or opportunity to him to complete the same; against his protest, and in violation of his rights.

The second special plea was substantially like the first, except that it averred that by the usage and custom of contractors and subcontractors for building railroads the contract between Price and the railroad company became and was a part of the contract between Price & Co. and the defendant. The allegations as to non-failure, want of notice, etc., being practically identical with those in said first special plea, to both special pleas demurrers were interposed by the plaintiffs and sustained by the court, the defendant excepting. Thereafter the case went to trial upon the issue joined upon the plea of not guilty, and a verdict was rendered therein in favor of the plaintiffs for $15,000. A judgment was entered thereon, the defendant moving to set aside the verdict, and for a new trial and in arrest of judgment, which motions were overruled; whereupon the defendant appealed to this court, and the case is here by virtue of that appeal.

On the trial a large number of questions were raised, objections made, and exceptions taken, and the appellant has filed here no less than 31 specifications of alleged error. Many of the rulings objected to were with reference to matters entirely discretionary in the court, many others appear to be unimportant, and we deem it unnecessary to consider more than three or four of the grounds upon which a reversal is claimed, as they appear to us to be the serious and controlling points in the case:

First, as to the ruling of the court in sustaining the demurrer of the plaintiffs to the defendant's first special plea. The contract between Price & Co. and the defendant was what is known as a subcontract; that is, by that contract the defendant undertook to do a portion of the work which Price had contracted to do for the railroad company. The language used is: “that the said party of the first part (Price & Co.) sublets to the party of the second part.” The contract with the defendant refers to the contract of Price & Co. with the railroad as to the price to be paid, and the time and manner and amount of payments, and as to the total compensation the defendant was to receive, which was 85 per cent. of what the railroad company was to pay to Price. It is stipulated therein that the work was to be done under the direction of the engineer in charge, (meaning, undoubtedly, the engineer of said railroad company,) and subject to his acceptance, and in such manner as he might direct, and it is provided that the appellant should have the advantage of the reduced rates of transportation guarantied to Price in his contract with the railroad company.

It was contended by counsel for appellees that the contract between them and the appellant was complete in itself, and that the contract of Price with the railroad company could only be considered in those particulars in which it was specially referred to by the contract with appellant; that the parties had designated what portions and provisions of the original contract should be referred to and considered in connection with their contract; and that by so doing they had excluded all other provisions, stipulations, and conditions; and the court below seems to have adopted this view. Was the position taken by counsel for appellees in their demurrer to said first special plea, and sustained by the court below, correct? We think the statement of a single proposition will suffice to answer this query. The contract between Price and the railroad company provided for the permanent suspension of the work by the railroad company before the completion of the contract, upon notice in writing to the contractor, and stipulated that in case of such suspension the contractor should be paid for all work done under the contract at the stipulated prices, upon the estimate of the engineer, which estimate was to be final and conclusive, and Price was to have no claim for damages or anticipated profits which he might have made if allowed to complete the work.

The contract with the appellant was for 15 miles of road-bed to be graded and completed...