Tennessee & C.R.R. Co. v. Danforth

• Decision Date: 27 April 1893
• Citation: 99 Ala. 331,13 So. 51
• Court: Alabama Supreme Court
• Parties: TENNESSEE & C. R. R. CO. v. DANFORTH ET AL.

13 So. 51

99 Ala. 331

TENNESSEE & C. R. R. CO. v. DANFORTH ET AL.

Supreme Court of Alabama

April 27, 1893

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by Danforth & Armstrong against the Tennessee & Coosa Rivers Railroad Company to recover damages for the alleged breach of a contract. Judgment for plaintiffs. Defendant appeals. Reversed.

The contract which is the basis of the action is as follows:

"Articles of agreement made this 25th day of May, in the year 1888 between C. E. Danforth, of New York city, and R. T Armstrong, of Rome, Ga., under the firm name and title of Danforth & Armstrong, party of the first part, and the Tennessee & Coosa Railroad Company, a corporation organized under the laws of the state of Alabama, party of the second part, witnesseth, that for and in consideration of the payments hereinafter mentioned, to be made by the party of the second part, the said party of the first part doth hereby covenant and agree to construct and finish, in a substantial and workmanlike manner, to the acceptance of the chief engineer of the party of the second part, and subject to all of the provisions of the specifications hereto annexed and indorsed, 'The Tennessee & Coosa Railroad,' the work on that part of the said Tennessee & Coosa Railroad extending from Littleton, in Etowah Co. Alabama, to Huntsville, in Madison Co., Alabama, which work is contained in two general divisions known as 'Division A' and 'Division B,'-Division A being understood to extend from Littleton to a point on the old grade of the Tennessee & Coosa Railroad near Guntersville, where the line of the extension of said road to Huntsville leaves the old grade as now constructed, and Division B being understood to extend from said point on the old grade near Guntersville to a junction with the tracks of the Memphis and Charleston R. R. in Huntsville,-as the same may be located by the chief engineer, and approved by the said Tennessee & Coosa Railroad Company. It is hereby mutually agreed and understood that the work to be done on Division A shall consist of making all excavations of rock and earth required in the unfinished cuttings from section one to section four, inclusive, and from section twenty-one to section, twenty-four, inclusive, and of all the masonry timber work, drain pipe, culverts, on the whole of Division A, and does not include the clearing and trimming, repairing, or finishing of the old cuttings and embankments. It is also hereby mutually agreed and understood that the work to be done on Division B shall consist of constructing and performing all the work required to be done for completing the substructure ready for the track, except the work connected with the Tennessee river bridge, and excepting the ironwork, where iron bridges shall take the place of wooden bridges. Wherever the word 'contractor' is used in this agreement it refers to and indicates the party of the first part. Wherever the word 'company' is used the party of the second part is designated. The contractor hereby agrees to complete the work contracted to be done on Division A, on sections one to four, inclusive, by September 1st, 1888; and on the whole of said Division A by November 1st, 1888; and on Division B, from its point of beginning with the old grade, and Division A, to the Tennessee river, at Guntersville, by December 1st, 1888; and from Aldrick creek crossing to a junction with the Memphis & Charleston R. R. tracks in Huntsville by September 1st, 1888; and the whole of Division B by December 31st, 1888. The work shall be commenced within ten days after the contractor shall have been notified by the chief engineer that the same has been staked out, and is ready, and shall progress in such parts of the work, and at such times, as the said engineer may direct. The party of the first part agrees to perform the work specified according to the prices named within the following schedules, and in full compliance with all requirements of the contract and specifications:

"Schedule of Prices on Division A.

Earth excavations per cubic yard ... $ 17

Loose rock excavations per cubic yard ...... 38

Solid rock excavations per cubic yard ...... 65

First class masonry per cubic yard .... 9 00

Second class masonry per cubic yard .... 8 00

First class arch masonry per cubic yard ... 11 00

Second class arch masonry per cubic yard .... 9 00

Box culvert arch masonry per cubic yard .... 3 00

Coping arch masonry per cubic yard ... 15 00

Slope wall arch masonry 2 00

Riprap arch masonry per cubic yard .... 1 50

Concrete arch masonry per cubic yard .... 2 50

Drain pipe, 15 inch, per lin. foot ........... 2 00

Drain pipe, 18 inch, per lin. foot ........... 2 40

Drain pipe, 24 inch, per lin. foot ........... 2 75

Piles lin. foot ................................ 30

Timber in foundations per B. M............... 20 00

Timber in wooden trestles B. M............... 25 50

Timber in wooden girders B. M................ 21 00

Wrought iron, per pound ........................ 05

Cast iron, per pound ........................... 04

"Schedule of Prices on Division B.

Earth excavations per cubic yard ... $ 18

Loose rock excavations per cubic yard ...... 39

Solid rock excavations per cubic yard ...... 78

First class masonry per cubic yard .... 9 00

Second class masonry per cubic yards ... 8 00

First class arch masonry per cubic yard ... 11 00

Second class arch masonry per cubic yard .... 9 00

Box culvert arch masonry per cubic yard .... 3 00

Coping arch masonry per cubic yard ... 15 00

Slope wall arch masonry per cubic yard .... 2 00

Riprap arch masonry per cubic yard .... 1 50

Concrete arch masonry per cubic yard .... 2 50

Drain pipe 15 inch, per lin. foot............. 2 00

Drain pipe, 18 inch, per lin. foot............ 2 40

Drain pipe, 24 inch, per lin. foot............ 2 75

Piles lin. foot................................. 30

Timber in foundations per M. B. M............ 20 00

Timber in wooden trestles M. B. M............ 27 75

Timber in wooden girders M. B. M............. 21 00

Wrought iron, per pound......................... 05

Cast iron, per pound............................ 04

"In consideration of a faithful performance of the conditions of this agreement by the party of the first part the party of the second part hereby agrees to transport all men, materials, machinery, and supplies required by the contractor in the performance of his work, free, over the tracks of the Tennessee & Coosa Railroad, and to pay, on or about the tenth of each month, for ninety per cent. of the work estimated by the engineer to have been done in the previous month, at the rates named in the foregoing schedule; the remaining ten per cent. to be retained by the company till the completion of the work. [Signed]

"The Tennessee & Coosa R. R. Co.

"By E. A. Quintard, Prest.

"Danforth & Armstrong."

As is stated in the opinion, the pleadings and the rulings thereon are sufficiently shown in the report of the case when it was here on a former appeal, and is found in 11 South. Rep. at page 60. Such rulings of the court upon the evidence as is passed on in the opinion are sufficiently stated therein. Among the charges given at the request of the plaintiffs, and to the giving of each of which the defendant separately excepted, are the following: (2) "The court charges the jury that if they believe from the evidence that the estimates made by W. H. Case, the engineer of defendant, on preliminary survey, as to the character of the contents whether more or less of earth loose or solid rock, still, if the jury further believe from the evidence that any portion of the line of the defendant's road has since been completed, or partially completed, and that said line so completed, or partially completed, was substantially on the preliminary line, then the jury can look to any evidence before them showing how much earth, loose and solid rock, were moved in such completion, if there be such evidence before them, to determine how much of each kind, whether in earth, loose or solid rock there were in said preliminary estimates." (3) "The court charges the jury that they can find a verdict for the plaintiffs for damages or profits if the preponderance of the evidence be on the side of the plaintiffs, if such evidence reasonably satisfies the minds of the jury of such damage or profits, although upon all the evidence there may be some uncertainty as to the amount of such damages or profits." The defendant requested the court to give the following written charges to the jury, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe from the evidence in this case that Danforth & Armstrong have failed to give such data or standard by reference to which the profits claimed of the defendant can be satisfactorily established or ascertained, then such profits would not be allowed, and your verdict on the matter of profits claimed would be for the defendant." (3) "The court charges the jury that if the profits claimed by Danforth & Armstrong of the defendant by reason of the breach of defendant's contract are probable, uncertain, speculative, and such as might be conjectured would be the probable result if Danforth & Armstrong had complied with their contract, then the plaintiffs cannot recover such profits." (5) "The plaintiffs must establish the amount of their loss by evidence from which the jury will be able to estimate the extent of their injury, excluding all such elements of injury as are incapable of being ascertained to a reasonable degree of certainty by the usual scales of evidence, and, if the evidence fails to do this, then your verdict must be for the defendant on the...