Robertson v. Energy Const. Co.

• Decision Date: 07 April 1927
• Docket Number: No. 4103.,4103.
• Parties: ROBERTSON v. ENERGY CONST. CO.
• Court: Missouri Court of Appeals

294 S.W. 426

ROBERTSON v. ENERGY CONST. CO.

No. 4103.

Springfield Court of Appeals. Missouri.

April 7, 1927.

Rehearing Denied May 16, 1927.

Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.

Action by F. L. Robertson against the Energy Construction Company. From the judgment, defendant appeals. Affirmed.

Wm. N. Barron, of Poplar Bluff, for appellant.

Garry H. Yount, of Poplar Bluff, for respondent.

COX, P. J.

Action for compensation for dirt moved in building a state highway. Trial by jury; verdict for plaintiff for $411.36. From the judgment rendered thereon, defendant appealed.

One W. A. Leach had been awarded a contract to do the work of preparing the grade for a state highway in Dunklin county, known as project 212. Leach sublet a part of the work to plaintiff. Afterward this defendant, Energy Construction Company, succeeded Leach, and by contract with Leach assumed all of Leach's legal obligations, among which was Leach's liability to plaintiff. It seems that Leach paid plaintiff for all the work he had done up to the time that defendant succeeded Leach, and this suit is to recover from defendant for work done for it after it took over the contract from Leach. The contract of Leach with the state highway commission and the contract of Leach with plaintiff, all of which was assumed by defendant, provided that the amount of work done should be computed by the engineer in charge of the work for the state highway commission, and his computation should be binding on both parties. In the contract between Leach and plaintiff, it was provided that Leach could discharge plaintiff at any time, and in case of such discharge the amount of dirt moved by plaintiff should be determined by the engineer, whose finding should be binding on both parties, and plaintiff should then be paid for the balance, if any, due him at the agreed price of 24 cents per cubic yard.

The petition set forth that provision of the contract, and alleged that plaintiff properly performed the work under the contract, and that he was discharged by defendant, but did not allege that the engineer had computed the amount of dirt moved by plaintiff, for which he had not been paid. It did allege that defendant had "failed and refused to settle with plaintiff for the amount due him for dirt moved under the terms of said contract, and still so fails and refuses, as in and by the terms of said contract it was duty bound to do." The petition was not attacked by defendant. The defendant filed an answer, which was a general denial. With the pleadings in that condition, the parties proceeded to trial.

The plaintiff offered in evidence the contract between himself and Leach and the contract between Leach and defendant. Plaintiff then proceeded to prove by witnesses (not by the engineer in charge of the work) the amount of work he had done under the contract prior to his discharge and the amount he had been paid upon it. Plaintiff testified on that question without objection, and was cross-examined at length by counsel for defendant. During the cross-examination of plaintiff, it was admitted by plaintiff and defendant that "the state of Missouri estimated the work done by the plaintiff in three monthly estimates, one in September, one in October, and one in November, 1923, and that said estimates aggregated 8,357 cubic yards of earth moved by the plaintiff, and that plaintiff received payment in full for that work, amounting to $2,005.68, for the three months ending November, 1923." The claim of plaintiff was based on work alleged to have been done in the month of December, 1923.

Clarence Robertson, son of plaintiff, who had kept books for plaintiff and looked after the work in his absence, also testified fully as to his knowledge of the amount of dirt moved by plaintiff in December, 1923. No objection was made to his testimony, and he was cross-examined at length relative to the same matter. It will be observed that plaintiff, in making his proof, ignored the provision of the contract that the computation of the amount of work done in case of plaintiff's discharge should be made by the engineer in charge for the state highway commission.

When plaintiff closed, the defendant did not demur to plaintiff's testimony, nor did it move to strike it out, but proceeded to offer testimony to refute that offered by plaintiff. The defendant placed the engineer on the stand, who testified that in January or February, 1924, he had computed the entire amount of dirt moved by plaintiff, and found it to be less than the total estimates made for September, October, and November, and' for which plaintiff had been paid. This engineer came upon the field December 1st, so the estimates on which plaintiff had been paid for the three months prior thereto had been made by another engineer. This engineer had made his estimate of his own volition, because he understood the work had gone to another contractor, and he wanted to ascertain the amount of work done under the Leach contract, so the highway commission could settle with him. It may be observed here that the estimate of this engineer was not made at the request of either plaintiff or defendant, nor was it made under the contract between plaintiff and Leach or defendant.

At the close of all the evidence defendant asked a peremptory instruction that under the pleadings and the evidence the plaintiff was not entitled to recover. This was refused. The court then gave an instruction for plaintiff, which submitted the issue of the amount of dirt moved by plaintiff for which he had not been paid. This instruction made no reference to any computation made by the engineer.

The defendant asked, and the court refused, an instruction to the effect that, if the project engineer examined the work done by plaintiff and ascertained the amount thereof, then the amount so found was conclusive upon both plaintiff and defendant, and neither party could go beyond it. The court modified this instruction by inserting therein that, in the absence of mistake by the engineer, the parties were bound by his estimate of the work done.

The appellant rests his case here upon the one proposition that the parties were, by the terms of their contract, bound by the computation made by the project engineer, and since his testimony showed that, according to...