The Chesapeake and Ohio Canal Company, Plaintiffs In Error v. Abraham Knapp and Others

• Decision Date: 01 January 1835
• Parties: THE CHESAPEAKE AND OHIO CANAL COMPANY, PLAINTIFFS IN ERROR v. ABRAHAM KNAPP AND OTHERS
• Court: U.S. Supreme Court

34 U.S. 541

9 Pet. 541

9 L.Ed. 222

THE CHESAPEAKE AND OHIO CANAL COMPANY, PLAINTIFFS IN ERROR v. ABRAHAM KNAPP AND OTHERS.

January Term, 1835

IN error to the circuit court of the United States for the county of Washington, in the District of Columbia.

This was an action of assumpsit, instituted originally in the county court of Montgomery county, in the state of Maryland; and by agreement of the parties transferred, with all the pleadings, depositions and other proceedings therein, to the circuit court of the United States for the county of Washington, in the District of Columbia.

The declaration contained nine counts: the first, second and third, for goods sold and delivered; the fourth, fifth, eighth and ninth, for work, labour and services, and for materials furnished, &c. the sixth, for money paid, laid out and expended, and for money had and received for the use of the plaintiffs; and the seventh, an insimul computassent. The defendants pleaded non assumpsit, and issue was joined thereon. A rule having been entered on the plaintiffs to file a bill of particulars, the same was duly filed, setting forth all the items of claim against the defendants.

The plaintiffs, in the circuit court, had, on the 4th day of May 1829, entered into articles of agreement with the Chesapeake and Ohio Canal Company, to execute certain sections of the canal, then being made by the company; according to certain specifications before agreed upon by the parties. Under this agreement the plaintiffs constructed eight locks on the canal, and this action was brought for the value of the work done, and materials expended on the same, and for other matters which had arisen under the agreement.

The only item in the bill of particulars which was deemed material, and which came under examination and discussion by the counsel and the court, in the argument and decision of the cause, was the following:

'To detention for want of cement at proper times at locks No. 8, 15, 16, 17, 18 and 20; damages sustained in consequence of such detention 600 dollars.

The defendants in error read in evidence the specification for lock No. 6, and their offer to contract for the construction of the said lock, on the terms therein stated; and also a paper containing their proposal to execute the said lock, according to the plan and the specification; and they proved that the proposals were accepted. They also read the agreement between them and the Canal Company, dated the 4th of May 1828, for the construction of the work pursuant thereto: and also like specifications and proposals, and their acceptance by the parties, for the execution of the other eight locks, and the contract for the same; the execution of the work to be done by them under the said contract, being also proved. The specifications particularly described the work to be done, the materials to be used, and the manner and time of its execution. In the specifications there was inserted the following:

'It is believed that hydraulic cement, suitable for the construction of lock masonry, may be obtained on the Potomac, as far east as Shepherdstown.

'Its average cost, it is presumed, will not exceed 40 cents the bushel, delivered at the shore opposite the locks; should it be found not suitable for the purpose, and it become necessary to import the New York hydraulic cement, or Parker's Roman cement, the president and directors will furnish to the contractor cement so imported, in good season, say by the 1st of May 1829, at the price of 40 cents the bushel, which shall be deducted from the sum to be paid for the lock if the contractor furnished the cement himself. The extent of its use, if it be so supplied, may be limited by the engineer to a certain distance from the face of the wall.'

The proposals stated the prices at which the work was to be done; and the agreement set forth stipulations for the performance of the work, and the sums to be paid for the same; with other matters to secure and define the obligations of the parties thereto.

The plaintiffs also offered, and read in evidence, the following resolution of the President and Directors of the Canal Company, passed the 2d day of September 1829.

'Ordered, That the board will furnish water lime to such contractors for masonry as shall provide houses to receive it, to be delivered at the river shore, opposite to their works, at 40 cents per bushel.'

And also the following resolution of the said president and directors, passed the 20th of January 1830.

'Resolved, That although this board has stipulated to supply the contractors with water lime, yet the board will not be held responsible for any damage arising from the want of that article.'

And also the answer of Theophilus Williams, to an interrogatory on the part of the plaintiffs.

'To the thirty-second annexed interrogatory this deponent replies, that the plaintiffs were very greatly hindered in their operations by the want of cement. This deponent has no written memoranda of the time which the plaintiffs were so hindered, but believes that the time lost by the failure of the defendants to furnish cement, was not less than one-third of the whole time from the 1st of April to the 1st of August 1830; and this deponent can further state, that the opinion of the late resident engineer, Daniel Van Slyke, Esq., agreed with that of this deponent above stated, as to the proportion of the time lost by the plaintiffs for want of cement. Orders were given to the plaintiffs not to discharge their men when idle for want of cement, but to retain them all under pay until a supply could be procured. This order had not reference to any one particular time when the plaintiffs were hindered for want of cement. The deponent was directed by the resident engineer to communicate the order to the plaintiffs, and did accordingly communicate it to them. This was the usual course of transmitting orders to the contractors for the different works on the Chesapeake and Ohio canal. This deponent received the same order at several different times from the president of the company. It was reiterated to the plaintiffs at various times, and was, as this deponent believes, strictly complied with by them. This order, as well as that referred to in the answer to the twentieth, was, according to this deponent's recollection, verbally given. This deponent cannot state with accuracy, to what extent the plaintiffs were delayed for want of cement previous to the 1st of April, but thinks there was some considerable for want of cement before that time. From what this deponent recollects of the number of men and teams employed by the plaintiffs, and the high wages paid to labourers generally, and more particularly to mechanics, and the expense of subsisting men and teams, this deponent is fully convinced that, including the wages of labourers and mechanics, the subsistence of men and teams, and the wear and tear of tools, the expense of the plaintiffs must have averaged, while hindered for want of cement, from 150 to 175 dollars a day. The deponent cannot say with exactness what number of days the plaintiffs were compelled to suspend their operations for want of cement, but thinks the whole detention may have been equal to from thirty to forty entire days.'

And also the answer of Milo Winchel, to an interrogatory on the part of the plaintiffs.

'To the ninth interrogatory, this deponent answering, says: that the defendants delivered the cement very irregularly, in small quantities, which caused very great hindrance and loss of time, and expense to these plaintiffs, by keeping a very large force of mechanics, common labourers, and teams, lying idle and upon expense of wages and board, whilst waiting for cement; the precise loss and damage incurred deponent cannot state, but, form his best recollection, would say, that the loss of time thus incurred, from the 1st of March 1830 until the completion of the said locks in August, therefrom, could not be less than forty days, at an expense to these plaintiffs of from 160 dollars to 170 dollars per day; besides the damage was very serious by delaying the work until the sickly months of July and August, which was the cause of a great advance in all kinds of labour, to induce labourers to remain upon the line of the canal at this season of the year; all this expense and risk might have been saved to these plaintiffs, had the cement been furnished as agreed on the part of the defendants, which would have enabled the plaintiffs to have completed the whole of their work early in June 1830.'

And also the answer of Henry Smith, to an interrogatory on the part of the plaintiffs.

'To the eleventh interrogatory this deponent will answer, that much delay was occasioned to the plaintiffs by the non delivery of cement, in quantities to meet their demands; the consequence was, they were compelled to keep their hands under pay without labour, and deferring the completion of their work until the more sickly season, when labour, if procured at all, was obtained at an advance from twenty to thirty-three per cent. It is believed by this deponent, that if sufficient quantities had been delivered in season, that the locks would have been completed by the 4th of July. That, at the time locks No. 18 and 20 were in progress, the plaintiffs often complained of a scarcity of cement, and one particular time they were lying idle for a number of days with a large force of hands, and, as deponent understood at the time, they were all under pay from the plaintiffs. The number of days alluded to above is believed to be two weeks or more; and many other times deponent knows of there being a want of cement, but the aggregate cannot be positively stated.'

And also the answer of Moses Randal, to an interrogatory on the part of the plaintiffs.

'To the eighth interrogatory, hereunto annexed, this deponent answering, says: that these plaintiffs were greatly hindered and delayed, nearly the whole time they...