Snell v. Cottingham

• Decision Date: 31 January 1874
• Parties: THOMAS SNELL et al.v.WILLIAM COTTINGHAM et al.
• Court: Illinois Supreme Court

72 Ill. 161

1874 WL 8782 (Ill.)

THOMAS SNELL et al.

v.WILLIAM COTTINGHAM et al.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of DeWitt county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Messrs. LAWRENCE, WINSTON, CAMPBELL & LAWRENCE, and Mr. LEONARD SWETT, for the appellants.

Messrs. MOORE & WARNER, Messrs. ROWELL & HAMILTON, and Messrs. STEVENSON & EWING, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Appellees, by a written contract, obligated themselves to build the Lafayette, Bloomington and Mississippi Railroad from the Illinois Central Railroad, at Bloomington, east to the Indiana State line. The work was to be commenced in 10 days after notice, and to be completed in 130 days thereafter.

Appellants, for whom the road was to be constructed, agreed to furnish engines and cars sufficient for the transportation and hauling of material in the performance of the work; to furnish material sufficient to lay twenty miles of track per month; to furnish a sufficient number of water tanks, and water to supply the engines. They were to pay appellees $475 per mile for laying the track, and twenty cents per cubic yard for earth work, done under the contract.

The track was to be laid in a good and substantial manner, with a good even surface, acceptable to the engineer of the Toledo, Wabash and Western Railway Company. Appellees agreed to fill in, after the track was laid, with earth, from the nearest point on the side of the track, so as not to injure the road bed, the filling to cover the ties in the center of the road, and slope each way to the bottom of the ties at each end. They were to put upon the work a force sufficient to lay twenty miles of track per month. All expenses for civil engineering were to be paid by appellants, and appellees to do all necessary grading to finish the road, to be measured in the earth work.

Previous to making this contract, the road bed had been graded, and the necessary bridges erected. The work, however, had been imperfectly done, and it required a great deal of additional grading to render it suitable to receive the track.

Within ten days after notice given, the work was commenced at the Illinois Central Railroad. The road was graded, and the track laid from that point to Paxton, a distance of about fifty miles, when winter came on, and no grading could be done.

The time had then elapsed for completing the entire work, but at the earnest solicitation of appellants, for the purpose of insuring the early completion of the work, appellees were induced to lay the track on the old road bed, without further grading, from Paxton to the State line. As soon as it was practicable in the spring, they finished the grading by filling in, and raising the track to a level surface. It was necessary, in some places, to raise the track after the iron had been laid, as much as two and a half feet.

The engineer made no estimates for grading done east of Paxton, nor allowed anything for filling in, nor for raising or widening grade, nor for anything else except ditching.

Having completed the entire work, as they allege, and the same having been accepted by the engineer of the Toledo, Wabash and Western Railway Company, appellees brought this suit to recover the balance due under the contract for constructing the road. The declaration contains several special counts, in which a full compliance with the contract is averred, except in so far as appellees were prevented by the default and wrongful conduct of appellants, and also the common counts, in the usual form, for work and labor done and performed. The general issue was filed, and notice given, under the statute, of special defenses. On the trial in the court below, the issues were found for appellees, and they recovered, as a part of the verdict, $5292 for ““filling in,” and $8000 for grading done east of Paxton.

The first point made upon which a reversal of the judgment is claimed is, that the proof does not fit the declaration, and hence it is said the court erred in overruling the motion in arrest of judgment.

Counsel have not pointed out the variance, and we are unable to perceive in what it consists. Such an objection may constitute good cause for a new trial, but we are not aware it can be considered on a motion in arrest of judgment.

It is insisted, in order to make out the case declared on, either under the common or special counts, appellees must prove a performance by them of the contract, subject to the exceptions noted. This is, no doubt, true, and it is the exact question made by the pleadings and the proof. Whether the testimony offered by appellees was sufficient for that purpose, it was the province of the jury to decide.

There is no question the work was not finished within the time agreed on, but in all other respects, a full compliance with the contract is insisted upon. As a reason for the nonperformance of the contract in that particular, it is averred the execution of the work was delayed, mainly by the failure of appellants to furnish a supply of water, and suitable and necessary machinery to enable appellees to work advantageously, as, by the terms of the contract, they had agreed to do. It is also averred, appellees were hindered in the prosecution of the work in other minor matters by the default and neglect of appellants.

On these questions of fact, the evidence is flatly contradictory, and it was most appropriately a case for the consideration of a jury. The testimony offered by appellees tends to show they had sufficient force on the work to lay twenty miles of track a month. The foreman of the track layers, and others, are positive in their statements, they could have laid a mile of track a day had they been furnished with water convenient, the proper number of cars and engines, and other things necessary to the vigorous prosecution of the work.

On the other hand, the evidence tends to show appellants furnished, in apt time, everything they agreed to by the terms of the contract, and that the delay was caused by the unskillfulness and improvident management on the part of appellees. In fact, there is some evidence the road was never completed as required by the contract. But when the evidence is so contradictory, it is the settled rule of law, we must rely on the verdict as determining the controverted facts. Any other rule would dispense with the services of the jury altogether. This we have neither the right nor inclination to do.

It is claimed the judgment should be reversed because appellees recovered $5292 for “back filling.” which work, it is insisted, is embraced in the $475 per mile for track laying.

The contract provides, appellees are to “fill in, after the track is laid, with earth;” that the track shall be laid on an “even surface,” and that they shall “do all necessary grading to finish the road, to be measured in the earth work aforesaid.”

The question raised is, whether the filling is included in what is called ““surfacing,” or whether it is to be measured as “earth work,” for which appellees were to receive twenty cents per cubic yard.

The word “surfacting” seems to be a technical term among civil engineers, and the definitions given of its meaning are as contradictory as any other part of the evidence. A witness for appellees says, “surfacing, in railroad parlance, is lifting up the ties and tamping dirt under them, so as to give an evenness to the entire track.” The definition given by a witness for appellants is, “Surfacing a railroad is filling in between the ties, and tamping under.”

We do not think the theory of appellants, that “filling in” is included in ““surfacing,” if that word means what their witnesses say it does, and is to be compensated by the consideration to be paid for laying the track, can be maintained, certainly not in view of the provisions of the contract. The track was to be laid with a “good even surface.” This is...