United Steel Co. v. Casey

• Decision Date: 13 February 1920
• Docket Number: 3302.
• Citation: 262 F. 889
• Parties: UNITED STEEL CO. v. CASEY et al.
• Court: U.S. Court of Appeals — Sixth Circuit

262 F. 889

UNITED STEEL CO. v. CASEY et al.

No. 3302.

United States Court of Appeals, Sixth Circuit.

February 13, 1920

H. H McKeehan, of Cleveland, Ohio, and John H. Fimple, of Canton Ohio, for plaintiff in error.

Paul J Bickel and W. C. Boyle, both of Cleveland, Ohio, for defendants in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

On the 4th day of September, 1915, the United Steel Company entered into a contract in writing with the John F. Casey Company, by the terms of which the latter company agreed to do certain excavating, grading, back-filling, and concreting at fixed and definite prices per cubic yard. This contract was signed on the part of the United Steel Company by S. R. Smythe, engineer, and on the part of the Casey Company by John F. Casey.

The Casey Company completed this contract September 23, 1916, and later commenced an action against the Steel Company to recover $112,295.99 for and on account of work and labor performed and material furnished. It is admitted that, based upon the unit prices named in the written contract, there was then a balance due the Casey Company from the Steel Company of approximately $12,000. The Steel Company denied that the Casey Company was entitled to recover this balance, by reason of the fact that it had failed to complete the work at the time specified in the contract; but there is now no longer a serious dispute in reference to this amount.

The real question in dispute is the claim of the Casey Company that on or about the 22d day of November, 1915, the Steel Company agreed with it that the unit prices named in the written contract should not be the measure of compensation for the work then or thereafter to be done, but, on the contrary, that the Steel Company would pay the Casey Company, for the work performed and material furnished, the fair and reasonable value thereof.

The Casey Company claims that the fair and reasonable value of the material furnished and the work done by it exceeds by about $100,000 the amount that would be due it, if calculated upon the unit price fixed in the contract. The Steel Company in its answer denied that any oral agreement had been made changing the prices per unit fixed in the written contract, and in its cross-petition asks damages for $500,000 for failure to complete the work without delay and in the quickest possible time, as provided in the contract. The jury returned a verdict against the Steel Company for the sum of $68,831.56, including the amount of $12,261.73, upon which verdict a judgment was rendered accordingly. This proceeding in error is prosecuted to reverse that judgment.

It is contended on the part of the plaintiff in error that there was no consideration for the alleged oral promise of the Steel Company to pay the Casey Company a fair and reasonable amount for material to be furnished, that the court erred in charging the jury that a preponderance of the evidence would be sufficient to warrant the finding that the written contract was orally modified, and that the verdict of the jury finding in favor of the plaintiff upon that issue is not sustained by clear and convincing proofs.

Whether the oral contract was made as pleaded in the petition, by the terms of which the Steel Company agreed to pay the Casey Company the fair and reasonable value of the work done and material furnished by it, instead of the unit price named in the written contract, is purely a question of fact for the jury. The correctness of this verdict in this particular involves the weight of the evidence, which this court will not consider, except in connection with the degree of proof required to establish such oral contract, the terms of which differ materially in a very important particular from the terms of the written one. The provision in the contract that 'no extras will be considered or allowed in connection with this contract, without first having an understanding and written order between John F. Casey Company and the United Steel Company,' does not in terms prohibit the making of an oral contract changing the compensation to be paid for the work and material actually covered by the written contract, but it does emphasize the fact that at the time this contract was executed it was the purpose and intention of the parties that the rights and liabilities of each should be measured and determined by its terms, at least as to the extent of the work to be done and the quantity of material to be furnished. While this provision applied only to extra material and labor not specified or included in the contract, nevertheless it was a fact to be considered by the jury in connection with the evidence tending to establish an oral contract, but in no wise controlling the determination of that issue.

The plaintiff avers a new and distinct contract as to price, not in writing, made some months after the original written contract was made; nevertheless we know of no rule of law or evidence that requires an oral contract, or an oral modification of a written contract, to be established by clear and convincing proofs. On the contrary, the authorities seem to be unanimous that such contracts may be established by a preponderance of the evidence. Jones, Stranathan & Co. v. Greaves, 26 Ohio St. 2, 20 Am.Rep. 752; Lyon v. Fleahmann, 34 Ohio St. 151-155; Shaul v. Norman, 34 Ohio St. 157; Bell v. McGinness, 40 Ohio St. 204, 48 Am.Rep. 673; Achenbach v. Stoddard, 253 Pa. 338, 98 A. 604; Piatt's Administrator v. U.S., 89 U.S. (22 Wall.) 496, 506, 22 L.Ed. 858.

The case of Ashley v. Henahan, 56 Ohio St. 559, 47 N.E. 573, involved a claim by the contractor for extra work done and material furnished in defiance of the express provision of the written contract that he would make no such claim except upon a written order from the architect. The other cases cited by counsel for plaintiff in error involve like questions, except the case of Hasler v. West India Steamship Co., 212 F. 862, 129 C.C.A. 382, in which case there was no claim made that a new oral contract, changing or modifying the terms of a written contract, had been made; but, on the contrary, the plaintiff claimed that the terms of the contract as written had been orally waived by agents of the other contracting party, and this without any consideration whatever paid or agreed to be paid by the party in default.

We...