Reagan v.Pacific R.R.

• Decision Date: 31 March 1855
• Citation: Reagan v.Pacific R.R., 21 Mo. 30 (Mo. 1855)
• Parties: REAGAN, Respondent, v. THE PACIFIC RAILROAD, Appellant.
• Court: Missouri Supreme Court

21 Mo. 30

REAGAN, Respondent,

v.THE PACIFIC RAILROAD, Appellant.

Supreme Court of Missouri.

March Term, 1855.

1.The burden of proof is on the party seeking to subject a railroad company to liability as garnishee in a suit against a contractor, to show facts which would have enabled the contractor himself to maintain a suit against the company.

Appeal from St. Louis Law Commissioner's Court.

The case is stated in the opinion of the court.

P. E. Burke and John Decker, Jr., for appellant.

Lewis & Henning, for respondent.

RYLAND, Judge, delivered the opinion of the court.

Reagan sued Matthew H. Ryan and John Powers, before a justice of the peace, by attachment, and garnished the Pacific Railroad Company.He obtained judgment against the defendants, and also against the garnishee; from this judgment an appeal was taken to the law commissioner's court.The plaintiff recovered judgment on the appeal, which was, on motion, set aside, and a new trial ordered.The plaintiff again recovered judgment against the garnishee, who brings the case here by appeal.

Matthew H. Ryan and John Powers were contractors of the Pacific Railroad Company, under special contract to do the graduation and masonry on sections seven and eight of said road.This contract was made by them in the name of Matthew H. Ryan & Co.The contract was partly in writing and partly in print, and contained numerous specifications, or, more properly, sections under the general head of specifications.Some of these will be noticed as of importance, and others not, in this opinion.

“Sec. 40.Should the contractor, at any time after sixty days from the beginning of the contract, not be found to proceed with all or any sections of his work, in such a manner as to secure, in the opinion of the engineer, the entire completion of the work, on the said section or sections, within the time allowed by this contract, it shall be the duty of the engineer so to notify him; and should he not then, within ten days of the date of the said communication, make the necessary exertions and arrangements to compensate, in the opinion of the engineer, for previous negligence or inactivity, and to insure the fulfillment of his contract in due season, the engineer shall notify the president of the company and the first party to that effect, and the contract shall then be declared and considered null and void, and the engineer shall be at liberty to employ other persons to fulfill the contract, and finish all or any parts of the work of graduation, masonry or otherwise, on said section or sections, and the contractor shall be liable for any damage, or for any extra expense caused by his neglect to fulfill his engagements,” &c.

“Sec. 41.In case of failure to fulfill the contract, the usual percentage which has been retained, is hereby declared to be forfeited to the company as a penalty incurred in consequence of said failure; and no moneys which may be due the contractor, over and above that percentage, shall be paid until the contract is completed; and should the employment of other persons increase the cost of the work, such moneys shall be applied toward that additional cost,” &c.

“Sec. 51.It is understood and agreed, that said Matthew H. Ryan & Co. shall take ten per cent. of the amount that shall become due and payable under this contract, in stock of the Pacific Railroad.”

“Sec. 52.Payments, conditional on the true and faithful performance of this contract, will be made monthly, as the work advances, at the estimate of the engineer, reserving ten per cent. until the completion of the contract.These payments refer only to work completed, and it will be entirely discretionary with the company to make payments on account of materials delivered, but not applied permanently to the work for which they may be intended.”

The contract was dated 24th December, 1851.The bill of exceptions shows that there was but one witness examined.He was the chief engineer of the Pacific Railroad Company.From his testimony, it appears that Ryan was the acting man; that about the time of payment of July 10th, ...