Williams v. Chicago, S. F. & C. Ry. Co.

• Decision Date: 20 October 1892
• Citation: 112 Mo. 463,20 S.W. 631
• Court: Missouri Supreme Court
• Parties: WILLIAMS et al. v. CHICAGO, S. F. & C. RY. CO. et al.

20 S.W. 631

112 Mo. 463

WILLIAMS et al. v. CHICAGO, S. F. & C. RY. CO. et al.

Supreme Court of Missouri, Division No. 2.

October 20, 1892.

RAILROAD CONTRACT — CONSTRUCTION — SUBMISSION TO ENGINEER — ACTION FOR BREACH — PLEADING — QUANTUM MERUIT — LIEN — LIABILITIES OF PURCHASER OF ROAD — REVIEW ON APPEAL.

1. In an action against a railroad company for work performed under a contract stipulating that it shall be executed under the direction of the company's engineer, by whose admeasurements the amount of work performed shall be determined, and whose determination shall be conclusive, the stipulation was binding, since it was a part of the consideration of the contract.

2. The fact that the engineer was a stockholder of the company does not render the submission to him invalid on the ground that he is made a judge in his own case, since, by the contract, the engineer is not a judge between the parties indifferently, but a person who represents the company, and will look after its interest.

3. The first count in the complaint set out the contract, and then alleged that the engineer, though often requested, did not make the measurements as required by the contract, and certify them, and that his failure so to do was fraudulent, and collusive with defendant. The answer denied this allegation, and set out the final estimate of the engineer. The reply inferentially admitted there was an estimate made by the engineer, but alleged that it was made in violation of the contract, and was fraudulent. Held, that before plaintiffs could introduce evidence of the amount and value of the work done by them they must first show that the engineer had refused to make an estimate as required by the contract, after demand, since the issue presented was one of certificate or no certificate.

4. The second count in the complaint was one of quantum meruit, under which plaintiffs offered to show that the engineer had failed to measure the work, plaintiffs' compliance with the contract, and the amount and value of the work done, which was excluded. Held, that the court erred in excluding the evidence, since defendant's allegation of certificate made was a matter of defense at this stage of the trial, and did not preclude plaintiffs from showing under either count the amount of their work, and since they had a right to show that the engineer misconstrued the contract, and had not measured the work according to contract, for which purpose an allegation of fraud was unnecessary.

5. In such case plaintiffs cannot recover more than the contract price, since the contract must control as to price and all other matters fixed by the contract.

6. In such case, where a part of plaintiffs' petition was stricken out on motion, and in the motion for a new trial no complaint was made thereto, it is not reviewable on appeal.

7. The allegations that the engineer fraudulently failed to make the required measurements are insufficient to enable plaintiffs to impeach his measurements, since they are too general to give the court or defendant any information of the fraudulent acts relied upon.

8. The award of the engineer is impeachable for fraud or gross mistake.

9. Upon an issue in quantum meruit plaintiffs were not obliged to call the engineer as a condition precedent to establishing their case before the jury.

10. The plaintiffs filed a lien against the property of defendant, and in their statement lumped the items of debit and credit. A few days later they filed another lien, and in their statement set out the amount claimed, the nature of the work, the materials furnished, the dates when the work was done, and the items of credit. Both liens were filed within 90 days from the time when the work was finished. The action was brought on the second lien. Held, that the court erred in directing the jury to find against the plaintiffs' right to a lien, since, under Rev. St. 1879, art. 4, c. 47, providing that contractors, material men, and laborers on railroads shall have a lien if filed within 90 days from the time when the work was finished, the plaintiffs were entitled to one valid lien, and, if their first lien was faulty, they had a right to file another within 90 days from the time when their work was finished.

11. Where, during the progress of contract work for a railroad company, it sells out to another railroad company, and the latter assumes to pay its grantor's debts, it is not necessary for the contractors to file their lien within 90 days of the sale, in order to preserve their lien against the second-named company, since the contract will support a lien against the former company, and all who take the property with notice of the obligation.

12. In an action praying a personal judgment against both companies, where it appeared that plaintiffs had accepted money due them for work from the second-named company, the court erred in directing the jury on that account to find for all the defendants except the second-named company, since the acceptance of the money did not work a release of the first-named company.

Appeal from circuit court, Macon county; ANDREW ELLISON, Judge.

Action by Benezette Williams and others against the Chicago, Santa Fe & California Railway Company and others to enforce a contractors' lien for work. The jury found against the lien, and for all the defendants except the Chicago, Santa Fe & California Railway Company, and plaintiffs appealed. Reversed.

The other facts fully appear in the following statement by GANTT, P. J..

In the year 1887 the Chicago, Santa Fe & California Railway Company, of Iowa, a corporation of the state of Iowa, began the construction of a line of railroad from Kansas City, Mo., through Missouri and Iowa, to the Mississippi river, and the Chicago, Santa Fe & California Railway Company, an Illinois corporation, began the construction of a railroad from the Mississippi river to Chicago, in continuation of the other line. A. A. Robinson was second vice president and chief engineer of the Illinois company. B. F. Booker was chief engineer of the Iowa company. On the 12th of January, 1887, the plaintiffs in this action entered into a written contract with the Iowa corporation to do the following work: "The grubbing, clearing, and grading, including the furnishing of materials, as specified in said contract, to complete the roadbed, and prepare the same ready for receiving the superstructure upon that portion of said railroad described in said contract as `sections 75 to 94, inclusive, in division 3,' which said sections of said road commenced about three miles west of the Grand river, in the county of Carroll, and terminated at the easterly end of said section 114, in the county of Macon, running through parts of Carroll, Chariton, Linn, and Macon counties, in the state of Missouri." Said contract contained, among others, the following provisions: "The work shall be executed under the direction and supervision of the chief engineer of said railway company and his assistants, by whose measurements and calculations the quantities and amounts of the several kinds of work performed under this contract shall be determined, and whose determination shall be conclusive upon the parties, and who shall have full power to reject or condemn all work or materials which in his or their opinion do not fully conform to the spirit of this agreement; and said chief engineer shall decide every question which can or may arise between the parties relative to the execution thereof, and his decision shall be binding and final upon both parties. And whereas, the classification of excavation provided for in the annexed specifications is of a character that makes it necessary that special attention should be called to it, it is expressly agreed by the parties to this contract that the determination by the measurements and calculations of the said engineer of the respective quantities of such excavation shall be final and conclusive. The aforesaid party of the second part hereby agrees that whenever this contract shall be completely performed on the part of the said party of the first part, and the engineer has certified the same in writing, the said party of the second part shall, within ten days thereafter, pay to said party of the first part any remaining sums due for said work according to this contract. It is further agreed between the parties that monthly payments shall be made by the party of the second part, on the certificate of the engineer, for work done, deducting 10 per cent. from the value of work done, as agreed compensation for damages, to be forever retained by the party of the second part, in case the whole amount of work herein named shall not be done in accordance with this agreement. For the purpose of avoiding all causes of difference or dispute between the parties to this contract, relative to its true intent or meaning, and for the purpose of adjusting in an amicable manner any difference that may or can arise relative thereto, it is hereby mutually understood and agreed by the parties as follows, to wit: (1) No extra charges will be claimed or allowed on account of changes either in the line or grade of the road, the prices herein mentioned being considered as full compensation for the various kinds of work herein agreed to be performed. (2) Whenever work is required to be done which is not now contemplated or covered by the prices herein mentioned, the engineer shall fix such prices for the work as he shall consider just and equitable, and the said parties shall abide by such prices: provided, the party of the first part enter upon and commence such work with full knowledge of the price so fixed by the engineer; but, if the party of the first part decline executing said work at the price fixed by the engineer, then the party of the second part may enter into contract with any person or persons for its execution, the same as if this contract had never existed; and if extra work, or work...