The Chicago v. Vosburgh

• Decision Date: 30 September 1867
• Citation: 1867 WL 5275,45 Ill. 311
• Parties: THE CHICAGO AND GREAT EASTERN RAILWAY COMPANYv.JOHN S. VOSBURGH.
• Court: Illinois Supreme Court

45 Ill. 311

1867 WL 5275 (Ill.)

THE CHICAGO AND GREAT EASTERN RAILWAY COMPANY

v.JOHN S. VOSBURGH.

Supreme Court of Illinois.

September Term, 1867.

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.

This was an action of assumpsit, brought by John S. Vosburgh, against the Chicago and Great Eastern Railway company, in the Superior Court of Chicago, to recover for work and labor done, and materials furnished, in the construction of an embankment.

The cause was tried before the court and jury, and a verdict found for the plaintiff, and his damages were assessed at $5,639.42. A motion for a new trial was overruled, and judgment rendered upon the verdict. The defendants appealed to this court.

The facts are sufficiently stated in the opinion.

Mr. E. WALKER, and Messrs. JONES & GARDNER, for the appellants.

Messrs. GARRISON & BLANCHARD, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by appellee, in the Superior Court of Chicago, against appellants, to recover for work and labor done and materials furnished. The plea of the general issue was filed, and a trial had before the court and a jury, resulting in a verdict for appellee of $5,639.42. A motion for a new trial was entered, which the court overruled, and rendered a judgment on the verdict, and to reverse it the case is brought to this court by appeal. The errors assigned are in sustaining the objection made by plaintiff to the evidence offered by defendants, and in excluding testimony sought to be introduced by him; that the verdict is against the law and the evidence, and that a new trial should have been granted by reason of surprise to defendants below on the trial.

On the trial below, appellant asked a witness, “what was the fair value of the work which Mr. Hudson proposed to have you do.” It is insisted that this witness had, before appellee made the contract, examined the work with a view of himself contracting for its performance, and was, therefore, supposed to be acquainted with the value of the labor necessary to its performance. But this evidence was not proper, even if it referred to the same, as appellee did the work under a special contract, and the damages must be measured by that agreement. Appellants had no right to prove to the jury that the work embraced in the contract was worth less than they agreed to pay for its performance. This question was not directed to what was claimed to have been work done outside of the contract, and under a new agreement. Nor did this question identify the particular work. It does not appear that the question referred to the labor performed by appellee. For aught that appears from the question, it may have been some other and entirely different from that performed by him. This question was, therefore, improper, and no error was committed in rejecting it.

Appellants then offered to read a description of the work, as specified in the contract, to this witness, and then to ask him whether he was applied to by the company to perform the same work, and if so, what it was worth at the time of making the agreement. While this would have identified the work as the same, still it would have been liable to the objection that it proposed to fix a different mode for ascertaining the value of the labor from that specified and agreed upon by the parties in their written contract. The question had no reference to what was claimed to have been done outside of the agreement. So far as labor was performed under the agreement, it and it alone must control in fixing the compensation agreed to be paid. This is a rule that has uniformly governed. It enters into and forms a part of the agreement as fully as any other portion of the contract, and cannot be altered or varied.

So far as other work was done not embraced in or provided for by the agreement, and of a character the value of which could not be fixed by the price agreed to be paid by the contract, then a different rule would prevail, and the person performing it would recover according to its value. But where the extra labor performed is of the same character as other portions agreed for, and the price specified, it will be inferred that the additional work is to be paid for at the same rate. But labor of a different character could not have been intended to be goverened by rates fixed for other kinds of labor. If a builder were to undertake to construct a building, and the plan were, by consent of the parties, changed so as to require the use of more materials and labor than was specified, and no agreement was made in reference to the price of extra work, it...