The Indianapolis v. Miller

• Citation: 1874 WL 8699,71 Ill. 463
• Parties: THE INDIANAPOLIS AND ST. LOUIS RAILROAD CO.v.LUTHER MILLER.
• Decision Date: 31 January 1874
• Court: Supreme Court of Illinois

71 Ill. 463

1874 WL 8699 (Ill.)

THE INDIANAPOLIS AND ST. LOUIS RAILROAD CO.

v.LUTHER MILLER.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Christian county; the Hon. HORATIO M. VANDEVEER, Judge, presiding.

Mr. S. W. MOULTON, and Mr. M. A. OSBORN, for the appellant.

Messrs. HENRY & PENWELL, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The company, in 1869 and 1870, were engaged in building a railroad from Indianapolis to Terre Haute, in Indiana. Tenny & Wright contracted to construct a portion of the work. Their agreement with the company was in writing, and the company was bound to pay therefor on monthly estimates. The contract provided that Tenny & Wright were to be liable for the payment of wages to their laborers, and when, in the opinion of the president of the company, it should be necessary to secure the laborers, the president had authority to pay them, and their receipts therefor should be sufficient vouchers against Tenny & Wright, as so much paid on their contract.

Appellee became a contractor with Tenny & Wright, to do the work on three sections of the road, being 40, 41 and 42, and, as such sub-contractor, commenced work thereon. Some time afterward, the laborers on other portions of the road became apprehensive that they would not get pay for their labor, quit work and went to Greencastle and attempted to mob Tenny, when Morris, the president of the road, came to Greencastle and addressed the men, and said to them: “Go back to your work, and I will see that you are paid.” It seems that appellee's hands generally remained at work and did not join in the movement to quit. But appellee went to Greencastle, and says he heard the promise, but he does not know that the president knew he was there, and that they, at that or at any other time, had no conference in reference to his working for the road, either as to manner, extent or compensation.

The laborers returned to work, and the company appointed timekeepers and paid all of the hands laboring on the road, including those employed by appellee. He also presented his account for pay for his teams employed on the road, and for his own labor, received payment, receipted for the same without objection, remonstrance, or by any act indicating that he was not fully satisfied with the arrangement. Nor does it appear that he manifested the least dissatisfaction, nor did he claim that the company was liable to him in any other way, or for anything else, until after the work was all completed.

It appears that Tenny & Wright remained contractors until the completion of the work, and settled with the company. There is no pretense that they ever abandoned their contract, or that the company released or discharged them from its performance. Nor does it appear that appellee abandoned his contract with Tenny & Wright, or that he was ever released or discharged from its performance, but they seem to have increased the price he was to receive for handling earth by the cubic yard. The work progressed in all things after as before the difficulty with the laborers, except the company kept the time and paid the hands, instead of the contractors. So far as disclosed, the company hired no hands, but that was done by the contractors as before, nor were new contracts let. The old contractors and sub-contractors employed, superintended and managed the work as they had previously.

On a final settlement, it was found that the company had paid out to laborers and contractors over $200,000 more than it came to under the contract with Tenny & Wright; and that more had been paid on the three sections embraced in appellee's contract than it amounted to on estimates on Tenny & Wright's contract, thus leaving no money in the hands of the company belonging to appellee's principals, the first contractors.

On this state of facts, we are totally at a loss to see how it can be held that the promise of the president of the road could be construed into an agreement, express or implied, with contractors or sub-contractors. They were not dissatisfied or threatening to quit work, but it was the men in their employment who were so acting, and it is manifest that the language was intended to be addressed alone to them. Had the difficulty been with the company and the contractors, all know that a different course would have been pursued. The president would have gone to or sent for the contractors and subcontractors, and the old contracts would have been rescinded and new ones made with them or others, or modifications made, and whether new ones or modifications had been entered into, the changes would have been reduced to writing.

It is totally incredible that the president ever could have intended to permit contractors or sub-contractors to proceed and charge what they saw proper for labor performed, nor will the language bear such a construction, if the words employed are not tortured out of their meaning. He was addressing common laborers, and not contractors. He made the promise to the laborers to whom he was talking. They had quit work and were attempting to mob a contractor, but there is no evidence that the contractors or sub-contractors had quit. And the language used was: “Go back to your work,” not continue work that you have not quit or threatened to quit.

Again, appellee gave to the contract there made by the president with the laborers, its true construction, by presenting his bill for labor performed by him and his teams, and by having his hands receive the money directly from the company instead of from him. He had no estimates made of the earth removed, and presented to the company when he received payment for his labor and for the use of his teams. Had he supposed the contract was what he now claims, he surely would have had his estimates made and presented for payment at each pay day. But he manifested his consciousness that such was not the agreement. From his conduct, it it clear that, although he heard the promise to the men, he did not understand it to embrace him as a contractor, but only as a laborer. And no one can reasonably suppose that the president for a moment understood that the contractors and sub-contractors were embraced in the promise. All know, that to make a contract, the minds of the parties must meet and come to an agreement as to the thing to be done or not done. Here, the language employed, the surrounding circumstances, and the subsequent conduct of appellee, all contradict the inference that the minds of the president of the company and of appellee came to an accord on what is now claimed as the contract.

Even if Morris intended to include contractors and their sub-contractors in the promise, it could not have been extended beyond the pay they were to get under the terms of their contracts. It could not have abrogated existing agreements. It was not to permit laborers to work and charge what they might choose, but it was simply a guaranty by the president that he would pay them reasonable wages...