Rankin v. Thompson

• Decision Date: 02 May 1884
• Citation: 7 Colo. 381,3 P. 719
• Parties: RANKIN v. THOMPSON and others.
• Court: Colorado Supreme Court

3 P. 719

7 Colo. 381

RANKIN v. THOMPSON and others.

Supreme Court of Colorado

May 2, 1884

Appeal from district court of Fremont county.

Thatcher & Gast, for appellant.

J W. Meldrum and J. D. Freeman, for appellees.

HELM J.

Appellees were subcontractors under appellant in grading a portion of the Gunnison extension of the Denver & Rio Grande railway. No particular amount of grading was stipulated to be done by them; they were to do as much as they could. The construction work on this extension was divided into sections one mile each in length. Appellees commenced grading upon section 274, which they finished. Then proceeding to 275 they did about one-quarter of the work, and passed to 276. Leaving the latter in an unfinished condition they advanced their force to 277. After doing a small part of the work on 277 they returned to 276, and ultimately completed the grading of that section. In the mean time the track-layers were approaching, and the extension company had given orders to the appellant to have the gaps left by appellees upon these sections immediately filled up. Appellant gave notice to appellees in accordance with these orders. The latter failing to comply as quickly as the urgency of the case required, appellant put forces of men to work and completed the sections. There is practically no dispute as to the actual amount of grading done by appellees or the sum paid them therefor and the balance remaining due but appellant contended that appellees were bound to finish each section before leaving it; that their failure to do so was a violation of their contract with him; that by reason of such failure the necessity arose for his filling the gaps left himself; that in the sudden removal of camps, the transfer of large bodies of men, the performance of the labor, and otherwise in doing this work, he was compelled necessarily to incur great expense; and that such necessary and reasonable expense, added to the amount already advanced to appellees, exceeded what he would have paid them under the contract for grading the four sections, in the sum of $1,177.70. For this amount appellant, in his answer, demanded judgment by way of counter-claim. The contract was verbal, and appellees deny that they were bound thereby to complete each section before passing to the next, leaving no gaps unfinished.

The main question of fact presented to the jury related to the terms of the agreement in...