Spaulding v. Coeur D'Alene Railway & Navigation Co.

• Decision Date: 26 November 1897
• Citation: 5 Idaho 528,51 P. 408
• Parties: SPAULDING v. COEUR D'ALENE RAILWAY AND NAVIGATION COMPANY
• Court: Idaho Supreme Court

51 P. 408

5 Idaho 528

SPAULDING v. COEUR D'ALENE RAILWAY AND NAVIGATION COMPANY

Supreme Court of Idaho

November 26, 1897

RAILROAD CONSTRUCTION CONTRACT-HARMLESS ERROR.-The court found that a certain contract was entered into by the parties, but omitted to find that certain specifications referred to in said contract, and made a part thereof, were a part of the said contract. Held, under the facts of this case, that such omission was harmless error.

CONFLICT IN EVIDENCE-FINDING MUST STAND.-Where there is a substantial conflict in the evidence, a finding of fact by the court based thereon, will not be disturbed.

ENGINEER CONSTITUTED UMPIRE.-Under the provisions of a contract for the construction of a railroad which provides that "to prevent disputes and misunderstanding, the engineer of the company is constituted the umpire, to settle the same," and also to decide the "amount and quantity, character and kind of work and material performed and furnished, and that his decision shall be binding, final and conclusive," held, that said stipulation imposes on the company the duty of employing an engineer who is thoroughly competent, upright and honest, and also to see to it that such engineer performs such duties fairly and honestly.

CLASSIFICATION OF MATERIAL TO BE REMOVED.-Where, under a contract between plaintiff and defendant, it is specified that grading shall include earth, "loose rock" and "solid rock," after defining the terms "loose rock" and "solid rock," earth is defined as follows "All other material of whatever nature, including boulders measuring less than one cubic foot, and loose sand rock, slate and shale, which can be excavated with picks shall be estimated and considered earth, and under the head of excavation or embankment, as the case may be," and in the progress of the work hard-pan is struck that cannot be excavated with picks, but requires blasting, and the plaintiff applied to the defendant for a "hard-pan" classification, and was informed that he should have a fair classification, under the contract, as to the hard-pan, the plaintiff is entitled to recover a reasonable compensation per cubic yard for removing such hard-pan.

QUANTUM MERUIT.-Where one party to a contract is prevented from completing the contract within the time specified, by reason of the other party's neglect, failure or refusal to perform his part, he is not obliged to bring his action upon the contract to enforce payment, but may resort to the quantum meruit to obtain his compensation.

RESCINDING CONTRACT.-If the acts of one party to a contract be such as to prevent the other from performing his part within the time specified, he may rescind or abandon the contract and recover under a quantum meruit.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Affirmed.

Dudley, Bunn & Dudley and Albert Allen, for Appellant.

It was error to allow respondent seventy cents per cubic yard for the removal of hard-pan. The specifications for grading contained in the contract provide as follows: Grading shall include earth, loose rock and solid rock. Loose rock shall include all detached masses of rock or boulders measuring not less than one cubic foot and less than one cubic yard, and all slate and shale in place which can be removed without blasting, although blasting may occasionally be resorted to. Solid rock shall include all rock in place and boulders measuring one cubic yard and upward, in removing which it is necessary to resort to drilling and blasting. Earth--all other materials of whatever nature including boulders measuring less than one cubic foot, and loose sand rock, slate and shale which can be excavated with picks shall be estimated and considered as earth, and under the head of excavation or embankment, as the case may be. Since it is conceded that the substance called "hard-pan" is neither solid rock nor loose rock, it is necessarily "earth" under these specifications. (Wilkin v. Ellensburg Water Co., 1 Wash. 236, 238, 24 P. 460.) Assuming, but not conceding, that there was a valid rescission of the contract by the respondent, its specifications with reference to the classification of the material to be removed and the payment to be made thereon would still control. (City of Chicago v. Sexton, 115 Ill. 230, 2 N.E. 263-265; Todd v. Huntington, 13 Or. 9, 4 P. 295; Blood v. Wilson, 141 Mass, 25, 6 N.E. 362, 364; Carroll v. Welsh, 26 Tex. 147; City of Sherman v. Conner, 25 S.W. 321, 322; Eakright v. Torrent, 105 Mich. 294, 63 N.W. 293, 294; McGregor v. Ross' Estate, 96 Mich. 103, 55 N.W. 658, 660; 2 Sutherland on Damages, 523.) By proceeding with the work without objection after notice that a hard-pan classification would not be allowed, Mr. Spaulding waived all right to recover upon such classification. (Nounnan v. Sutton Co. Land Co., 81 Cal. 1, 22 P. 515; Saratoga etc. R. R. Co. v. Row, 24 Wend. 74, 76, 35 Am. Dec. 598.)

Willis Sweet and Turner & Forster, for Respondent.

We were entitled to bring this action in its present form, and to the relief prayed, not only because of the accounting, but we were obliged to adopt this form of action, because not having executed the agreement, we could not sue on the contract. We might, perhaps, have brought an action for breach of contract and asked for damages; but that would not necessarily have embraced the accounting. Indeed, we were not under obligations to follow the prices stipulated in the contract, for the reason that its breach was not brought about through the fault or negligence of respondent. The principles governing an action of this kind are clearly defined in the following cases, and, in our judgment, in view of the testimony already cited as to the facts, justify the legal conclusions made by the court below. There are but two conclusions of law over which legal controversies can arise. The third and fourth conclusions (there being four in all) depend upon the first and second. The first and second conclusions are sustained by the following authorities: Herrick v. Belknap's Estate and Vermont Cent. Ry., 27 Vt. 673. The case is also found in 1 Redfield's American Railway Cases, 305; Dubois v. Delaware etc. Canal Co., 4 Wend. 283; Dubois v. Delaware etc. Canal Co., 12 Wend. 333; Delaware etc. Canal Co. v. Dubois, 15 Wend. 85; Merrill v. Ithaca etc. Ry., 16 Wend. 586, 30 Am. Dec. 130, and note. The same decision appears in 1 Redfield's American Railway Cases, 322. In the case at bar, we were not bound to the prices in the contract, because appellant's breach of contract resulted in material loss. (2 Parsons on Contracts, 522, 523.) The authority in this instance goes to the point of our right to recover under the quantum meruit rule; indeed, states that it is our only remedy or form of relief. (Linningdale v. Livingston, 10 Johns. 34; McMahon v. New York etc. R. R., 20 N.Y. 463; Rorer on Railways, 461.)

SULLIVAN, C. J. Quarles and Huston, JJ., concur.

OPINION

SULLIVAN, C. J.

The appellant, the Coeur D'Alene Railway and Navigation Company (a corporation), entered into a contract with William L. Spaulding, the respondent, on the ninth day of August, 1886, by the terms of which respondent agreed to construct a line of railway from Old Mission, in Kootenai county, to Wardner Junction, in Shoshone county--a distance of about fourteen miles. The work of grading was to be completed, under the terms of said contract, by the tenth day of October, 1886. Work was commenced about the 20th of August--a few days after said contract was entered into. Prior to entering into said contract, appellant's chief engineer furnished an approximate estimate, upon which bids were offered. In said estimate, the quantity of solid rock to be removed was placed at eight thousand cubic yards. In the final estimate made by appellant's engineer, the trial court allowed respondent for eighteen thousand yards of solid rock. The approximate estimate of the cost of said road, upon which the rival contractors made their bids, was $ 35,000 while it is admitted by appellant's engineers that said road cost over $ 73,528.98. These facts are stated to show that the work in constructing said road, and its cost, were more than double the estimates made by appellant's chief engineer. Under the terms of said agreement, respondent was to receive nineteen and one-third cents per cubic yard for all earth work, fifty-five cents per cubic yard for all loose rock work, one dollar and twenty-five cents per cubic yard for all solid rock work, and for laying track, including surfacing roadbed and laying ties, $ 300 per mile, and to have said work all done by October 15, 1886. Also, approximate estimates of the work done under the contract were to be made at the end of each calender month by the chief engineer of the company, or his assistants, and payments thereon to be made on the fifteenth day of the next ensuing month, less previous payments, and less fifteen per cent of the amount of each monthly estimate, until the completion of the contract. Under the specifications attached to said contract, it is stipulated that grading shall include earth, loose rock, and solid rock; and the terms "loose rock" and "solid rock" and "earth" are defined. "Earth" is defined as follows: "All materials, of whatever nature, including boulders measuring less than one cubic foot, and loose sand rock, slate and shale, which can be excavated with picks, shall be estimated and considered earth, and under the head of 'excavation' or 'embankment,' as the case may be." The August estimate was made and received by Spaulding, and payment thereon made on the 15th of September. The September estimate was also made, and payment...