Wallace v. Stegall

• Decision Date: 31 January 1871
• Citation: 42 Ga. 462
• Court: Georgia Supreme Court
• Parties: C. WALLACE, Superintendent Western & Atlantic Railroad, plaintiff in error. v. TUMLIN & STEGALL, defendants in error

42 Ga. 462

C. WALLACE, Superintendent Western & Atlantic Railroad, plaintiff in error. v. TUMLIN & STEGALL, defendants in error

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

.

[COPYRIGHT MATERIAL OMITTED.] Effect of Repeal. Western & Atlantic Railroad. Secondary Evidence. Measure of Damages. Profits. New Trial. Cumulative Evidence. Before Judge Hopkins. Fulton Superior Court. November Term, 1870.

In August, 1867, Tumlin & Stegall averred that, on the 1st of December, 1857, Spullock, then Superintendent of the Western & Atlantic Railroad, in his official capacity as such, employed them to supply with water a tank, at Shanghai *station, on said road, for five years from the completion of the necessary works therefor, to-wit: An hydraulic ram, pipes and fixtures, all to be furnished by plaintiffs, for which Spullock, as Superintendent, agreed to pay them $1 00 per day, payments to be made per month; that they erected said works at a cost of $700 00, which were sufficient to perform the service for five years, and on the 1st of March, 1858, began to supply water, and continued so to do till March, 1860, when defendant discontinued the use of said tank and tore it down. Because they were ready to go on and were prohibited by defendant, they claimed pay, at said rate, for the whole time. They averred that this contract was in writing, but had been lost, that the defendant refused to pay on demand, etc. The defendant pleaded the general issue and Statute of Limitations, four years. The defendant\'s counsel moved to dismiss the suit, because it was based upon a lost instrument, which had not been established according to the statute for such cases provided. This motion was overruled.

Plaintiffs introduced evidence as follows:

Lewis Tumlin, one of the plaintiffs, testified as follows: In 1857 or 1858, Tumlin & Stegall, through me, made a contract with James M. Spullock, then the Superintendent of the Western & Atlantic Railroad. Said contract was reduced to writing, and signed. I had the writing in my possession, and afterwards (perhaps about 1861)—but I do not remember the year exactly—handed it to Hawkins F. Price, one of the members of a legislative committee appointed to investigate the affairs of the Western & Atlantic Railroad. He received it as a member of the committee, and not as a private individual. A copy of said contract was subsequently included in the printed report of said committee. The original is not now in my possession, and I know not where it is. I believe it to be lost. Have never seen it since I handed it to Price. I have inquired of Price for it several times, and he answered that he did not have it, and did not knowwhat had become of it. Have not inquired of any other *member of the committee, nor at any office in the State House, nor had any search made among the papers of the Legislature. Have mentioned it to Campbell Wallace while he was Superintendent, who could neither find the original nor one of the reports containing a copy. He said he would get a copy of the report, if possible, but stated afterwards that none could be found, or that he had failed to find any. My impression is that Price was the person to whom I gave the writing—that is my best recollection. He was from my own county, (Bartow) and was on the committee.

The contract, as agreed on and set out in the writing, was this: Tumlin & Stegall were to lay down pipes, etc., and keep up a running stream of water at Shanghai Station on the Railroad for the term of five years, for which the road was to pay them one dollar a day for the whole term, Sundays included, the days of each month to be paid for at the end of each month.

The plaintiffs went on to perform their part of the contract. They bought a piece of land with a good spring upon it, and by means of pipes carried the water from said spring to the station, about a hundred and fifty yards, and kept up a running stream for something like two years. The stream was still running when the tank was pulled down by the authorities of the road, and the plaintiffs were ready and willing to have kept it running from that time to the end of the five years. The works as then existing were apparently sufficient, without other expense than the wages paid Mrs. Reeves for attending to them, to supply the stream for the whole term. The plaintiffs paid Mrs. Reeves about two dollars per month. Her business was to see that no trash washed into the pipes, and that the stream was kept running. She was employed and attended to the business as long as the tank stood and the road would use the water. The plaintiffs gave no consent to the act of the road in taking down the tank and ceasing to receive water.

The land purchased was either ten or forty acres, I do not *remember which, and was of value only for the spring and for this purpose. It was not wanted by the plaintiffs for any other purpose, and would not have been bought by them if this contract for supplying water had not been made. It is still their property, but they have no use for it. My recollection is that it cost $100 00 or $200 00, but Stegall thinks it cost $250 00, and perhaps he is more likely to be correct, as he gave more attention to executing the contract than I did. Indeed, the whole matter of erecting the necessary works was under his charge, and I do not recollect that I was ever at the spring after the work was finished. I do not know whether any rams for elevating the water were put up there or not. The whole expense to the plaintiffs of starting the water to run, according to contract, including cost of the land, was $600 00 or $700 00. So I think, from my best recollection, and in view of this expense, I thought the contract rather a hard one. The pipes were of cast iron, and are all there yet, as they were placed in the ground when the work was first done.

I have never received one cent under said contract. Money to pay us was sent up the road several times, as I understand, but only at the rate of $20 00 a month. I would not receive it, because not enough according to contract, and I gave strict orders to Stegall not to receive it. Whilst Dr. Lewis was Superintendent of the road, I conversed with him several times in regard to paying us. He refused to pay more than $20 00 per month, saying that Spullock had agreed to pay too much. He admitted that the water ran in a beautiful stream. The written contract was then in my possession, but I did not show it to him, so far as I now recollect.

This evidence of the contents of the writing came in over objection of defendant's counsel, upon the ground that the loss of the original was not sufficiently shown.

Stegall testified the same, in substance, as to performance, andthat nothing was paid to him. Spullock testified to the *contract substantially as Tumlin did. Mr. and Mrs. Reeves testified to keeping up the supply of water as averred, so long as defendants would receive it. Demand and refusal of settlement before suit being shown, plaintiffs closed.

Defendant's counsel read the interrogatories of Dooly, Supervisor of the road, to show that such contract was not made, and that plaintiff had been paid something for such work, and closed. The Court then charged the jury, among other things not excepted to, as follows:

"In this case the plaintiffs do not seek to recover damages for any breach of the contract, except the alleged breach by non-payment of the whole sum sued for, and no other breach can be recovered for.

"They can, however, recover the whole amount sued for, less what would have been their expenses in keeping the water running from the time the road ceased to use it until the end of the term contracted for, and less, also, the payments made to them, if any, provided they have proved the contract as alleged, and the facts of the case are, substantially, as set out in the declaration. The parties, as witnesses, are entitled to full credit, as other witnesses, unless they have been impeached or discredited."

The jury found for plaintiffs for $1,825 00 principal and $1,046 35 interest, up to 25th November, 1869.

Defendant's counsel moved for a new trial, upon the grounds that the Court erred in refusing to dismiss said cause; in allowing the contents of said writing proved, and in each clause of said charge; and because the verdict was contrary to law, etc., and for certain newly discovered evidence. That evidence was produced with an affidavit, as follows:

"I, P. L. Mynatt, attorney for the defendant, do swear, that since the trial of the case, I have discovered a report of a Senate committee of the State of Georgia, of which Hawkins F. Priceseems to have been a member, in the year 1858; that it is the only Senate committee I have been able *to hear of, after diligent search and inquiry, of which Hawkins F. Price was a member; that in the proceedings of said committee, I find, on page 35, 36, 37, 38 and 39 of the pamphlet, which I ask to be considered in connection with this affidavit, a report or review of the dealings of the plaintiffs with Spullock, formerly Superintendent of the road, and, among the rest, what purports to be a copy of contract between the plaintiffs and Superintendent Spullock, reduced to writing after Spullock left the road. Said contract is in the form of a letter from Spullock to Tumlin, of date, 28th February, 1858. It seems to be treated as the contract by the committee, and affiant supposes it to be the contract alluded to by the witness, Tumlin, as he sees no other in said report. From this writing it seems that Tumlin was to keep up a supply of wood and water at a station between Allatoona and Etowah River, for a term of five years, at customary prices. Affiant had no knowledge of the existence of this report, or of the evidence contained therein, until after the trial, and he thinks it was not known to any officer or agent of the road, as this matter has been under his control and management, and ...