St. Paul & Northern Pacific Ry. Co. v. Bradbury
| Decision Date | 24 December 1889 |
| Citation | 42 Minn. 222 |
| Parties | ST. PAUL & NORTHERN PACIFIC RAILWAY COMPANY <I>vs.</I> GEORGE B. BRADBURY and others. |
| Court | Minnesota Supreme Court |
of the contract in respect to which such liens could attach. The complaint further alleges that Patterson substantially constructed the buildings, and the final estimate made in accordance with the contract showed the amount due him, including all extra allowances under the contract, to be $151,258.11, of which he had been paid $146,768.89, leaving unpaid $4,489.22. That defendant has failed to perform his covenant against liens, and that the buildings have become subject to liens for work, labor, and materials furnished and performed by his subcontractors, to an amount greater than such unpaid balance, which liens have been established by judgments in actions against Patterson and this plaintiff, the judgments being described in detail.
The sureties in the bond, in their answer, deny the making of any final estimate, and deny generally any breach of his contract by Patterson, and allege, as a counterclaim, (1) that before the contract was made the plaintiff furnished Patterson estimated quantities of all the material that would be required to complete the buildings as planned by plaintiff, and represented that the estimates had been carefully made and were correct; that in making the contract both plaintiff and Patterson relied on the correctness of the estimates, meaning to base the contract upon correct estimates; that such estimates were erroneous and understated the quantities required for the buildings as planned, by reason whereof Patterson was compelled to use labor and material to the amount of $20,000 more than if the estimates had been correct. (2) That Patterson did work and furnished material, at plaintiff's request, other and different from what was contemplated and covered by the contract, to the amount of $13,000, which the plaintiff agreed to pay. The relief asked is that the contract be reformed "so as to conform to the true quantities as may be shown to have been included therein," and that plaintiff be adjudged to be indebted to Patterson in the sum of $33,000, and that the sureties be discharged from liability on the bond. The reply was a general denial.
At the trial, before Lochren, J., the plaintiff introduced in evidence the written contract with the specifications and the "Notice to Proposers" which formed part of it, the material parts of which are quoted in the opinion. The defendants, in support of their counterclaim, offered to show that the estimates contained in the "Notice to Proposers" were erroneous and insufficient for the buildings called for by the plans and specifications; that in the construction of the buildings Patterson was compelled to and did use a much larger quantity than stated in the estimates; that the error in the estimates was caused by a mistake of plaintiff's engineer shared by Patterson, so that the contract was based on a mutual mistake. And they further offered to show the true quantities required to be used and in fact used in the construction of the buildings. This was objected to and excluded, on the ground that the quantities were to be verified by the contractor, and the plaintiff was not to be responsible for any mistake.
The defendants then offered to show, independent of the question of reforming the contract, that Patterson, with plaintiff's knowledge and consent, furnished additional material necessary for the construction of the buildings as made, which material was accepted by plaintiff, "it being stated in the contract that the quantities estimated are approximate merely, and are subject to change and alteration as therein provided; and that our claims were all put in and represented, but that there was a large portion of them disallowed." To this the plaintiff's counsel objected that it was incompetent, irrelevant, and immaterial under the pleadings and evidence; that the contract excludes any such evidence; and that "it already appeared by the evidence on the part of the plaintiff that Patterson had presented his claims for this extra material; that the same had been fully passed upon by the chief engineer of plaintiff, and each item either allowed and included in the final estimate, or disallowed by him." The objection was sustained, and to this as to the former ruling the defendants excepted.
The court found, among other facts, that, pursuant to the contract, Patterson, prior to the end of January, 1886, constructed the buildings therein mentioned, and did for plaintiff other and extra building not specifically mentioned in the contract, but similar in character and material; and that the final estimate by defendant's chief engineer after the completion of all plaintiff's work showed the whole amount payable to Patterson under the contract, including such extra building and all extras, to be $151,258.11, of which plaintiff has paid $146,768.89, leaving a balance of $4,489.22 due to Patterson. The court also finds that Patterson did not perform his covenant in respect to liens, but suffered the buildings to become subject to liens in favor of Patterson's servants and subcontractors, for labor and material, which liens have been perfected by judgments to the amount of $15,632.70, all which the plaintiff has been compelled to satisfy and has satisfied, and none of which has been repaid to it. Judgment was ordered for plaintiff for $11,290.61.
Upon the filing of the decision, the defendants moved for leave to amend their answer by pleading a clause in the contract providing that plaintiff...
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