St. Louis, I. M. & S. Ry. Co. v. Clark

• Decision Date: 24 May 1909
• Citation: 119 S.W. 825
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. CLARK.
• Court: Arkansas Supreme Court

119 S.W. 825

ST. LOUIS, I. M. & S. RY. CO. v. CLARK.

Supreme Court of Arkansas.

May 24, 1909.

Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

Action by C. W. Clark against the St. Louis, Iron Mountain & Southern Railway

Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This suit was brought by C. W. Clark against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for an alleged failure to furnish cars to haul away certain excavation material as it had agreed to do.

Clark's version of the agreement and the attendant circumstances is substantially as follows: Certain real estate owners wished to make excavations on their property on East Markham street in the city of Little Rock, Ark., and consulted with the officials of the St. Louis, Iron Mountain & Southern Railway Company about making the contract. The railway company wished to place side tracks in the rear of the buildings to be erected upon the property, and offered to take the dirt from the excavations to make certain fills along its main track near the proposed buildings. In their advertisement for bids, the owners stated that the officials of the railway company had assured the owners of their desire to provide cars to remove the earth excavated, and notified the bidders to verify that statement. Before making a bid for the work, C. W. Clark wrote a letter to W. T. Tyler, general superintendent of the railway company, asking for information of the correctness of the advertisement in regard to furnishing cars for the removal of the earth. The letter was not answered. Afterwards, and before making his bid, Clark went to Tyler, and asked him if he would furnish cars to take the dirt away if he was the successful bidder. Tyler agreed to furnish the cars and move the earth, and, with that understanding, Clark bid on the excavations and secured the contract. He then went to Tyler to secure a steam shovel with which to make the excavations, stating to him that he understood that the railway company had several steam shovels that were then idle. After he had made his statement, Tyler said: "How much is there in it?" Clark replied: "I don't know, Mr. Tyler. I am willing to pay whatever it is worth. That is for you to say." Tyler then said: "We can't furnish the shovel." Tyler knew that he wanted the steam shovel to do the excavation work above mentioned. Clark then rented a steam shovel from the Dalhoff Construction Company and proceeded with the work of the excavation. After the shovel was received, Clark went to Tyler's office, and said to G. W. Herschman, the chief clerk to Mr. Tyler, that he wanted some cars. Herschman said "When?" Clark answered in two or three days. Herschman then said, "How are you going to load them?" Clark answered: "With a steam shovel," and Herschman replied, "All right, the cars will be there." On that same morning five cars were sent. There was an engine with them, and the engine "spotted" the cars for the steam shovel.

F. W. Green, who was terminal superintendent for the railway company, came over to the place where the work was being done some time during the same forenoon, and said, "You have not got cars enough here to keep this shovel and engine busy," and Clark answered, "No, not half enough." Green replied, "I will go back over the river and have five more fixed up and sent over." Five more cars were then sent over by Green. One cut was made, and about that time Green came along, and said, "Clark, you will have another track here pretty soon." Clark answered, "Yes." Green replied, "I can't do that without instructions from Mr. Tyler," and further said: "Mr. Tyler is out of town, I can wire him." The next morning he came to the work, and said to Clark: "We have got the material and can put it in, but there will be an additional charge for the labor, which we will want you to pay." Clark responded that he would pay it, but would do so under protest, but that, if it was right that he should furnish the labor, that would be the end of it. This was on Thursday, and on the following Saturday Mr. Pollock, the yard master, came over, and said: "This is Saturday. Had we not better put it off until Monday?" Clark answered: "Get it over as early as possible Monday." Pollock replied: "All right, I will." On Monday Pollock did not come back, and Clark went down and called Mr. Green up and asked him what was the matter. Green said: "It is all off." Clark answered: "All off! What is the matter?" Green replied: "Mr. Tyler says he is not going to do anything more." After that no more cars were furnished, and Clark removed the dirt by wagons.

W. T. Tyler, the general superintendent of the railway company, admitted that he agreed with Clark to haul away the earth, but said that he thought it would be excavated in the usual way — that is, by hand, or with a dump trap — that he would not have made the agreement to take the dirt if he had known it was to be done with a steam shovel, because the railway company was not able at the time to do the commercial work. He admitted having a conversation with Clark about a steam shovel, and in that conversation tried to discourage the use of it because the operation of the steam shovel was the wrong way to go at the job; that he knew nothing more about what was being done until the second or third day; that Mr. Green, the superintendent of terminals, had attempted to supply Clark with cars, and had either misunderstood his instructions or had taken instructions from some one else; that on about the third day he stopped the work because he could not furnish two engines for the work, and it required that number, which was not according to the agreement he had made with Clark. Tyler further testified: "On December 15th I was in Charleston, Mo., and received a telegram from Mr. Green, which read as follows: `95 Rush. Dec. 15, 1904. W. T. Tyler, On Line. C. W. Clark, contractor for the new buildings near freight house requests us to furnish labor and material to build temporary track upon which to place dirt cars for steam shovel. It will be necessary for us to follow the steam shovel with this track until excavation is made up to Markham street. Material can be used elsewhere when work is done, but it will take about eighty-five dollars worth of labor to lay this track and line it around as he requests. Pls adv if I have your authority to go ahead and do this. Have told Clark cannot do it without authority. F. W. Green.' To that reply was made, not by me, but by Mr. Herschman, as follows: `Charleston, 12—16—04. W. A. McKee, L. Rock. Your note. Say to Mr. Clark that we will furnish the labor and material for temporary tracks account excavation for Plunkett-Jarrell building provided he will reimburse for cost of labor. This was the understanding I had with Mr. Green. G. W. Herschman — 12:14 p. m.'" McKee was the second clerk in Tyler's office....