Snell v. Brown

• Decision Date: 30 September 1873
• Citation: 71 Ill. 133,1873 WL 8700
• Parties: THOMAS SNELL et al.v.J. B. BROWN et al.
• Court: Illinois Supreme Court

71 Ill. 133

1873 WL 8700 (Ill.)

THOMAS SNELL et al.

v.J. B. BROWN et al.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Messrs. LAWRENCE, WINSTON, CAMPBELL & LAWRENCE, for the appellants.

Messrs. HERVEY, ANTHONY & GALT, and Mr. HENRY CRAWFORD, for the appellees. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was assumpsit, brought by appellees against appellants, on a contract for the construction of that portion of the Decatur and State Line Railroad from section 104 to section 130 inclusive.

By the terms of the contract, appellees undertook to do the grubbing, clearing, excavating, grading, including the furnishing of materials and everything necessary to prepare the road-bed for the superstructure. Work was to be commenced in ten days, and completed, in conformity with certain specifications annexed to and made part of the contract, by the 16th of November, 1871, except section 104, which was to be completed by January 1, 1872.

Appellants were to pay appellees--

For clearing, per 100 feet, $4.

For grubbing, per 100 feet, $5.

For embankment, per cubic yard, 17 1/2 cents.

For excavation of loose rock, per cubic yard, 70 cents.

For excavation of slate rock, per cubic yard, $1.

For excavation of solid rock, per cubic yard, $1.25.

It was provided by the specifications that--

“Earth excavation will include all loose stones and other materials of every description, as found, and which are not included in the specifications as solid, slate or loose rock.

Earth, rock and all other materials taken from excavations, except when otherwise directed by the engineer, shall be deposited in the adjacent embankments, the cost of moving which, when the distance does not exceed 1,500 feet, will be included in the price of embankment; also, all materials necessarily procured from without the road-bed and deposited in the embankment, will be paid as embankment only.

In procuring materials for embankments from without the road-bed, the place will be designated by the engineer, and, in excavating it, care must be taken to injure or disfigure the land as little as possible.

Materials necessarily wasted from the cuttings will be deposited in the vicinity of the road, according to the directions of the engineer.”

It was also provided that “the work should be executed under the direction and supervision of the chief engineer of said railroad company, and his assistants, by whose measurements and calculations the quantities and amounts of the several kinds of work performed under this contract should be determined, and whose determination should be conclusive upon the parties, and who should have full power to reject or condemn all work or materials, which, in his or their opinion, did not fully conform to the spirit of this agreement; and further, that said chief engineer should decide every question which could or might arise between the parties, relative to the execution thereof, and his decision should be final and binding upon both parties thereto.”

Monthly estimates were to be made of the work done and materials furnished, during the progress of the work, and the amount thereof, less fifteen per cent, which was to be deducted and retained by appellants until the completion of the work, was to be paid by appellants upon the certificate of the engineer at Chicago. When the contract should be fully performed and the engineer should have certified the same in writing, appellants were to pay appellees, within ten days, what should then remain due, including the fifteen per cent deducted from the monthly estimates.

Appellees entered upon the work, and continued to prosecute it until the 11th of October, 1871, when it was suspended, in consequence of losses supposed to have been sustained by appellants in the great fire at Chicago. There is some conflict in the evidence whether the work was then suspended by order of the appellants or by the mutual consent of the parties. The fact, however, is undisputed that the work was then suspended, and that it has not been since resumed by appellees.

The declaration alleges that appellees had, from the time of the execution of the contract until stopped by appellants, observed the contract in every respect, according to its tenor and effect; that they would have completed the whole work according to the contract, if they had not been stopped by appellants; that, before the 11th day of October, they did work on sections 104 to 130 inclusive, to the amount of 137,140 cubic yards, for which a large sum of money is due them; that appellants did not perform their part of the contract, but delayed and hindered appellees while at work, up to October 11, when they stopped the work, and did not nor would suffer appellees to complete the contract, and then and there wrongfully discharged appellees from any further performance or completion of the work; that appellants, further disregarding their agreement, have returned, by the engineer on said work, incorrect estimates of amount of work done, and have procured said engineer to make incorrect estimates of the amount of work done, and have refused to pay appellees for work so done, etc.

Appellants pleaded, first, non assumpsit; second, that the chief engineer of said Decatur and State Line Railroad Company, in the contract mentioned, made estimates, as provided in the contract, all of which were duly paid; third, that all matters of difference between appellants and appellees were, by the terms of the contract, to be decided by the chief engineer of said railway company, and that said engineer did decide that, at the time when, etc., defendants owed plaintiffs, for work done under said contract, $11,165.18, and no more, which had been fully paid; fourth, that, about October 11, 1871, appellants, under and by virtue of the terms of said contract, suspended work thereon, and, on January 11, 1872, notified plaintiffs to resume the work, and complete the contract, which appellees have wholly refused to do, whereby appellants have suffered damages and loss to the amount of $65,000, of which said sum appellants are willing to recoup plaintiffs' damages; fifth, that, before the commencement of the suit, on January 11, 1872, appellees abandoned the work, leaving half undone, to be finished by appellants.

Appellees replied to the second plea, that the chief engineer in said plea mentioned did not, during the progress of the work, make estimates for the labor and materials, according to the contract, but falsely, knowingly and fraudulently, and at the request and by the instigation of appellants, furnished to appellants, about November 10, 1871, a false, fraudulent and incorrect estimate of the amount of work done and materials furnished by appellees, underestimating the quantity and value about one-half; that appellants procured such engineer so to estimate, for the purpose of cheating and defrauding appellees; that, although the estimate of November 10 was paid, appellants have not paid for the work and labor done by appellees according to the contract. Appellees also further replied to said plea, that the chief engineer was, by the contract, required to give just, true, faithful and correct estimates, etc.; that, in the estimate of November 10, 1871, said chief engineer so carelessly, insufficiently, negligently and incorrectly made said measurements, that said estimate showed but about one-half of the true amount, and that appe...