Springer Land Ass v. Ford

• Decision Date: 13 December 1897
• Docket Number: No. 89,89
• Citation: 18 S.Ct. 170,42 L.Ed. 562,168 U.S. 513
• Parties: SPRINGER LAND ASS'N et al. v. FORD
• Court: U.S. Supreme Court

168 U.S. 513

18 S.Ct. 170

42 L.Ed. 562

SPRINGER LAND ASS'N et al.

v FORD.

No. 89.

December 13, 1897.

[Syllabus from pages 513-515 intentionally omitted] This was a bill filed by Patrick P. Ford against the Springer Land Association and others, in the district court of New Mexico for the county of Colfax, to foreclose a mechanic's lien upon an irrigating ditch and reservoir system, the land covered thereby, the right of way therefor, and the particular lands intended to be irrigated. A cross bill was filed by the Springer Land Association and other defendants. The cause was heard on pleadings and proofs, and, on findings of fact and conclusions of law duly made and filed, the district court entered a decree in favor of Ford, adjudging a lien for the sum of $22,097.75, with interest and costs, on the ditch and reservoirs in question, together with the right of way (specifically describing them), and also on 22,000 acres of land appurtenant to the ditch, and to be irrigated thereby, specifying 46 sections in four designated townships.

It was further decreed that the Springer Land Association and other defendants pay or cause to be paid the sum found due, with interest and costs ($3,000 thereof to be paid to the clerk of the court), within 90 days, and in case of default that the property be sold by a special master, and the proceeds distributed as prescribed; $3,000 to be retained by the clerk of the court to await the determination of a suit by Dargle, a subcontractor, to recover the amount of $2,279.30, with interest and costs, or its payment and discharge by Ford. If a surplus was realized t the sale, it was to be held subject to the further order of the court. If a deficiency resulted, the amount was to be reported by the master to the court.

The case was carried to the supreme court of the territory, which found the facts, in substance, to be these:

On October 26, 1888, the Springer Land Association entered into a contract with Patrick P. Ford for the grading work in the construction of a certain ditch line and reservoir system for irrigation in Colfax county, N. M., which contract, and the specifications forming part of it, were set forth at length.

The contract provided: 'The party of the first part agrees to furnish all necessary tools and labor, and perform all the work of grading, required in the construction of the Cimarron ditch and its accessories. Said work to be done in a thorough and workmanlike manner, and in full accordance with the specifications hereto attached and made a part of this contract. Said first party agrees to begin work within ten days after signing this contract, and to complete the same on or before July 1st, 1889. The party of the second part agrees to pay said first party for work so done at the rate of eleven cents per cubic yard, without classification. And the amounts due for said work shall be paid at the time and in the manner described in the specifications hereto attached.'

Specification 11 related to allowance for extra work when done under the orders of the engineer.

Specifications 13 and 15 were:

'13. Subcontracts. Subcontracts must be submitted to the engineer, and receive his approval, before work is begun under them. No second subcontractor will be allowed. Subcontractors will be bound by the same specifications as the contractor, and will be equally under the suthority of the engineer.'

'15. Estimates. On or about the first day of each current month, the engineer will measure and compute the quantity of material moved by the contractory during the preceding month. He will certify the amount to the company, together with an account of the same at the price stipulated, which amount will be audited by the company without unnecessary delay, and the amount thereof, lessten (10) per centum retained, will be paid to the contractor in cash within ten days thereafter. This retained percentage will be held by the company as a guaranty for the faithful completion of the work, and will be paid in full, with the final estimate, upon the certificate of the engineer, accepting and approving the work; it being expressly understood that the failure of the contractor to fulfill his obligations will work a forfeiture of this retained percentage to the company. The amount due to the contractor under the final estimate will only be paid upon satisfactory showing that the work is free from all dangel from liens or claims of any kind through failure on his part to liquidate his just indebtedness as connected with this work.'

'Previous to the making of the last-mentioned contract, and on May 1, 1888, the Maxwell Land-Grant Company made a contract with C. C. Stawn and associates, who afterwards organized the Springer Land Association, which succeeded to their rights and obligations, by which the Maxwell Company gave to them a right of way for the proposed irrigation system of ditches and reservoirs, and by which said agreement it was, among other things, provided that with the view of selling certain of its lands at an enhanced value, and in consideration of certain perpetual water rights and franchises to be granted to it by the other party, it agreed to set apart and reserve from sale 22,000 acres of its lands, to be selected by the other party, and give to the other party a certain portion of the proceeds which might be derived from the sale of said lands, when sold. These lands were under the proposed ditch system, and to be irrigated by it; and, by this agreement, Strawn and his associates were to expend about sixty thousand dollars, or a sufficient sum to complete the enterprise on the proposed plan.' This contract was set forth in extenso.

'The title of the lands at that time, and at all times afterwards, was and remained in the Maxwell Land-Grant Company, except as to the rights acquired by Strawn and associates, and their successors in interest, under said contract. The same contract constituted Strawn and his associates and successors in interest the agents of the Maxwell Company, to the extent of, and for the purpose of, carrying into effect the spirit and intent of the contract as to the sale of the said lands; but that party (the Springer Land Association) had no other title in the lands than as given by said contract.

'Five days subsequent to the making of his grading contract, complainant, Ford, entered into another contract with the Springer Land Association, by which he agreed to select and accept one section of land under the proposed ditch system at the stipulated price of eight thousand dollars, to be taken as part payment on the contract price for Ford's grading work, by way of deduction of that sum from the final estimates on the contract for the construction of said ditch.

'The contract of May 1, 1888, designated one E. H. Kel- logg as the engineer to have charge of the construction of said system of ditches and reservoirs. No engineer was named in the contract between Ford and the Springer Land Association of October 26, 1888; but said Kellogg, with the assent of all parties, acted throughout as the supervising engineer.

'Ford let subcontracts for portions of the work to McGarvey, Dargle, and Haynes.'

That with Dargle was given in full, and the three were of like form and tenor, and approved by the engineer. Each contained this clause: 'It is mutually agreed that the amounts of these subestimates will in no case be demanded or paid in advance of the payment of the regular estimate.'

Estimates, as provided by the contract of October 26, 1888, were made by the supervising engineer from time to time, which were audited and paid by the Springer Land Association up to about May, 1889.

Estimate No. 6 was dated April 30, 1889, and showed the amount then due and payable, after reserving 10 per cent., to be $5,010.92. The amount of this estimate has never been paid.

June 13, 1889, the engineer gave Ford a written acceptance of the work, and a final estimate, set forth at large in the findings. The total amount payable under the contract was $48,553.56. The six prior estimates aggregated $35,928.03, and the last and final estimate was for $12,625.53; but as the sixth estimate, of $5,010.92, had not been paid, the total amount due was $17,636.45.

'This amount the Springer Land Association refused to audit any pay, on the ground that the sum so stated was in excess of the amount due; that the work had not been completed according to contract; that the engineer's final estimate was erroneous, either through fraud, inadvertence, or mistake, because the subcontractors had not been paid the several sums due them on the work by Ford, and that the property was not free from danger from liens; and also that Ford should accept the section of land which he had agreed to accept, and which he had previously selected, in payment of $8,000 of the amount of such final estimate.

'The Springer Land Association procured to be made and properly executed a deed of conveyance by the Maxwell Land-Grant Company, which held the title, to Patrick P. Ford, conveying to him the section of land which had been selected by said Ford, and had the said deed present in the hands of an agent of said Maxwell Company on June 19, 1889, when the representative of the Springer Land Association, said Ford, and his subcontractors met for final settlement; said deed to be delivered to said Ford upon payment to the agent of said Maxwell Company by the Springer Land Association of $4,000. The representative of the Springer Land Association had with him at that time, for the purpose of making settlement with Ford, currency and valid checks on a responsible Chicago ank for $17,000. He notified said agent and Ford that he was ready to pay the $4,000 to the agent of the Maxwell Company for the deed, if Ford would settle with his subcontractors. Ford examined the deed, and made no objection to it. McGarvey, one of the subcontractors, then present, claimed that Ford owed him about $4,000, which...