Price v. Treat

• Citation: 45 N.W. 790,29 Neb. 536
• Parties: THOMAS PRICE v. C. P. TREAT
• Decision Date: 13 May 1890
• Court: Supreme Court of Nebraska

45 N.W. 790

29 Neb. 536

THOMAS PRICE v. C. P. TREAT

Supreme Court of Nebraska

May 13, 1890

ERROR to the district court for Douglas county. Tried below before DOANE, J.

REVERSED AND REMANDED.

N. C Abbott, and C. O. Whedon, for plaintiff in error, cited White v. Merrill, 32 Ill. 511; Smith v Schulenberg 34 Wis. 41; Butler v. Regents, 32 Id., 124; Juilliard v. Chaffee, 92 N.Y. 529; Connell v. Vanderwerken, 1 Mackey [D. C.], 242; Am. Bridge Co. v. Murphy, 13 Kan. 33; St. Louis, etc., R. Co. v. Davis, 35 Id., 464; Scott v. Scott, 5 N. E. Rep., 397, and cases; Tompkins v. Hill, 14 N.E. [Mass.], 177; Sanford v. Abrams, 2 So. Rep. [Fla.], 373; Day v. Gardner, 7 A. [N. J.], 365.

John C. Cowin, and W. H. Munger, contra, cited: 2 Parsons, Contracts, 555; 1 Greenleaf, Ev., sec. 305; Cummings v. Baars, 36 Minn. 350; Squires v. Amherst, 13 N.E. [Mass.], 609; Stapleton v. King, 33 Iowa 28; Baker v. Nachtrieb, 19 HOW [U. S.], 126; Aborn v. Rathbone, 54 Conn. 444.

OPINION

COBB, CH. J.

The plaintiff filed in the district court of Douglas county his petition, as follows:

"Now comes the said plaintiff and, complaining of the said defendant, says:

"That on or about the 15th day of October, 1885, this plaintiff contracted and agreed to construct and finish all the grading work on the line of the Fremont, Elkhorn & Missouri Valley railroad, from station numbered 10,644, to station numbered 10,699, as the railroad of said company was then located, being a distance of one mile, by which contract and agreement this plaintiff agreed to construct the grading work on said portion of said road and the said defendant agreed to pay this plaintiff therefor, as follows, to-wit:

"For solid rock excavation, the sum of ninety cents per cubic yard.

"For loose rock excavation, forty-five cents per cubic yard.

"For earth work, the sum of sixteen cents per cubic yard, for each and every cubic yard of excavation and embankment in the construction of the part of said line of railroad hereinbefore mentioned, a copy of which contract is hereto attached and marked 'Exhibit A.'

"Plaintiff further says, that in pursuance of said agreement and contract he did, on or about said 15th day of October, 1885, commence the construction of said railroad under and in pursuance of the terms of said contract and continued the construction thereof until about the 2d day of February, 1886, at which time the said defendant wrongfully, and without any valid reason therefor, required this plaintiff to deliver the exclusive possession of the work then being constructed and the unfinished portion of the work, included in said contract to him, the said defendant, together with all the teams, wagons, plows, scrapers, shovels, and other material and tools then on the said work, the property of the plaintiff, as also the men, teams, and tools on said work then in the employ of and hired by this plaintiff, and the said defendant, after so wrongfully taking the possession thereof, continued said work for plaintiff with his tools, machinery, men, and other property aforesaid until the entire work under the provision of said contract was finished.

"Plaintiff further says that in the construction of that part of said railroad included in said contract, and under the provisions thereof, this plaintiff, while prosecuting said work, and defendant, while continuing said work, as aforesaid, for plaintiff, excavated and put in embankments, as per the provision of said contract, about fifty-seven thousand (57,000) cubic yard of earth, for which defendant agreed to pay the sum of sixteen cents per cubic yard, amounting to the sum of $ 9,120; that in the further construction of said work this plaintiff and said defendant, in the manner aforesaid, excavated, in the construction of said railroad, about three thousand cubic yards of loose rock, under the provisions of said contract, for which defendant agreed to pay the plaintiff forty-five cents per cubic yard, amounting to the sum of $ 1,350; that in the further prosecution and construction of said road this plaintiff and the defendant, in the manner aforesaid, excavated about thirty-three thousand seven hundred and sixty (33,760) cubic yards of solid rock, under the provisions of said contract, for which defendant agreed to pay this plaintiff ninety (90) cents per cubic yard, amounting to the sum of thirty thousand three hundred and eighty-four ($ 30,384) dollars; that the defendant has paid thereon the sum of twenty-five thousand ($ 25,000) dollars, and no more, and that there is now due from said defendant to this plaintiff, on the construction of said work, the sum of fifteen thousand eight hundred and fifty-four ($ 15,854) dollars.

"For a second cause of action against defendant plaintiff says: That at the time of the taking possession of the work, tools, and other property, as set forth in the first cause of action herein, to-wit, on or about the second day of February, 1886, said defendant then and there took the possession of the following described chattel property, to-wit: A large number of tools, consisting of scrapers, shovels, drills, mattocks, picks, sledges, crowbars, the number of each kind thereof, plaintiff is at the time of filing this petition unable to state, of the value of three hundred ($ 300) dollars, this plaintiff being the owner thereof, and unlawfully and wrongfully converted them to their own use, to the damage of the plaintiff in the sum of three hundred ($ 300) dollars.

"Wherefore the plaintiff prays judgment against the defendant for the sum of sixteen thousand one hundred and fifty-four ($ 16,154) dollars, and interest thereon from the first day of May, 1886, and costs of suit."

The defendant filed answer, as follows:

"Now comes the defendant for answer to the plaintiff's petition, and says:

"He admits that on or about the 15th day of October, 1885 plaintiff and defendant entered into the contract referred to in plaintiff's petition, and the defendant says that plaintiff neglected and refused to prosecute the work with such forces, tools, and machinery as the engineer in charge deemed adequate to its completion within the time specified in said contract, and that on the second day of February, 1886, plaintiff and defendant entered into a new contract, by the terms of which the plaintiff agreed to let this defendant put a foreman on the work mentioned in said contract, who should have entire and exclusive management of the work at plaintiff's expense, including keeping pay-rolls and paying men; that in pursuance of said agreement one of defendant's foremen took charge of said work under said agreement and with the consent of said plaintiff, and managed the said work under the provisions of said contract until the said work was completed.

"And defendant denies that under and in pursuance of said contract there was excavated and put into embankments fifty-seven thousand (57,000) cubic yards of earth, three thousand (3,000) cubic yards of loose rock, and thirty-three thousand seven hundred and sixty (33,760) yards of solid rock, but alleges the fact to be that there was excavated and placed in embankments, under the provisions of said contract, sixty-five thousand twenty-nine (65,029) cubic yards of earth, and no more, sixteen thousand thirty-one (16,031) cubic yards of loose rock, and no more, twelve thousand six hundred and ninety-six (12,696) cubic yards of solid rock, and no more, and that the defendant has paid plaintiff therefor the sum of twenty-nine thousand and forty-four dollars and ninety-nine cents ($ 29,014.99).

"Defendant says that by the terms of the said contract payments were to be made only upon estimates by the engineer in charge, of the amount of work performed, and the final estimate by the engineer in charge was to be final and conclusive as between these parties, and that said engineer in charge of said work estimated and reported the amount of earth removed at sixty-five thousand and twenty-nine (65,029) cubic yards; loose rock at sixteen thousand thirty-one (16,031) cubic yards; solid rock at twelve thousand six hundred and ninety-six (12,696) cubic yards.

"The defendant denies each and every allegation of fact contained in the second cause of action of plaintiff's petition.

"And this defendant for a further and second defense to plaintiff's petition says that on...