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

• Decision Date: 12 December 1899
• Citation: 54 S.W. 689,153 Mo. 487
• Court: Missouri Supreme Court
• Parties: WILLIAMS et al. v. CHICAGO, S. F. & C. RY. CO. et al.

54 S.W. 689

153 Mo. 487

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

Supreme Court of Missouri, Division No. 2.

December 12, 1899.

RAILROADS — CONSTRUCTION — CONTRACT — EXTRA WORK — CLASSIFICATION OF MATERIAL EXCAVATED — APPEAL AND ERROR — REFEREE'S FINDINGS — TRIAL COURT — DISCRETION.

1. A contract for the construction of a railroad which provides that the company's engineer shall determine the kind and amount of work to be done under the contract, and that his decision shall be final and conclusive on the parties, is valid, and in the absence of fraud the engineer's classification and estimates are conclusive upon both parties.

2. A referee's finding, approved by the trial court, will not be disturbed on appeal when there is any substantial evidence to support it.

3. Where a contract for the construction of a railroad provides that no extra charges shall be claimed or allowed on account of any change either in line or grade of the road, the prices therein mentioned being a full compensation for the various kinds of work performed, and that nothing shall be deemed extra work that can be measured or estimated under the provisions of the contract, there can be no recovery for a change of line, made by the railroad in good faith, which is capable of being measured under the contract.

4. Where a contract for the construction of a railroad provides that no extra charges shall be claimed or allowed on account of changes either in the line or grade of the road, and that whenever work is required to be done which is not contemplated or covered by the prices stipulated the engineer shall fix the prices for such work, and the contractors enter on and complete a grade not contemplated by the contract, but for which the engineer had, with the contractors' knowledge, fixed the compensation, there can be no recovery for such work as extra work.

5. Where the engineer in charge of the construction of a railroad required the use of scrapers instead of graders and wheelbarrows in the construction of certain embankments, and it appeared that the use of the latter implements in the forbidden places would have been an unusual method of railroad construction, there can be no recovery for the extra expense caused by the use of the scrapers.

6. Where a contract for the construction of a railroad fixes the distance of borrow pits and the width of the berms along the track, but provides that such distances may be changed in the judgment of the engineer, there can be no recovery for the extra expense caused the contractors by the widening of the berms, when the engineer makes such increase in good faith, and without any purpose of injuring the contractors.

7. Where a contract for the construction of a railroad provides that nothing shall be deemed extra work which can be measured and estimated under the terms of the contract, there can be no recovery for the work of cutting channels through ridges required by the engineers in good faith, when the contractors performed such work without any claim for extra compensation, which the contract required should be made before the prices therefor were fixed by the engineers.

8. A claim for extra work in the construction of a railroad caused by the right of way and stakes not being supplied when needed, as required by a contract, is one in the nature of damages, for which no recovery can be had in an action on the contract.

9. Where a contract for the construction of a railroad provides that the company's engineer shall determine the amount and kind of work done under the contract, and his estimates of certain "close chopping" of shrubbery are found by the referee to be incorrect, the action of the trial court in rejecting the referee's finding will not be disturbed on appeal when there is no abuse of its discretion.

10. Where a contract for the construction of a railroad provides that the company's engineer shall determine the amount and kind of work done under the contract, and his estimates of certain excavations are expressly acquiesced in at the time by the contractors, they must be held to have waived the right to afterwards claim any increase in such estimates, or any change in the classification of such work.

11. A contract for the construction of a railroad provided that the company's engineer should classify the several kinds of material, except hardpan, to be moved and excavated, but left it to him to say whether a specific excavation was hardpan, and provided that hardpan should be classified as loose rock, and that the amounts and kinds of work performed under the contract, and the engineer's estimates of the work, in the absence of fraud, should be conclusive upon the parties. In the classification made by the engineer of the different materials as loose rock, there was no specific classification of hardpan. No objection was made at the time to the omission of hardpan from the classification. The referee and the trial court found that the engineer acted in good faith in making this classification. Held, that the classification was binding upon the parties, though the engineer applied the percentage method in arriving at the amount of loose rock in the material excavated, irrespective of the plow or force test.

12. Where a contract for the construction of a railroad provides that the company's engineer shall classify all material to be moved and excavated, and provides that all material which in the judgment of the engineer could not be removed without blasting should be classified as solid rock, his classification of sand rock as 75 per cent. solid rock and 25 per cent. loose rock was not erroneous.

13. Where the contract for the construction of a railroad leaves to the company's engineer the measurements of all work performed under the contract, his final estimates on the distance material was hauled, made in good faith, and acquiesced in at the close of the work, are conclusive.

14. Where plaintiffs in an action on a contract for the construction of a railroad fail to recover more than defendant's offer of a money judgment, but are adjudged in addition a lien on the roadbed, they are entitled to recover their costs.

Appeal from circuit court, Macon county; Andrew Ellison, Judge.

Action by Benezette Williams and others against the Chicago, Santa Fé & California Railway Company and others. From a judgment of the circuit court rejecting certain findings of the referee, plaintiffs appeal. Reversed.

This is an appeal by plaintiffs from the judgment of the circuit court of Macon county. This is the second appeal in this cause. The first is reported in 112 Mo. 463, 20 S. W. 631. The action grows out of a contract to construct the roadbed, and prepare the same for the superstructure, upon that portion of defendants' road described as sections 75 to 94, inclusive, in division No. 2, and sections 95 to 114, inclusive, in division 3, commencing about three miles west of Grand river, in Carroll county, and terminating at the east end of section 114, in Macon county. The right of lien was settled on the former appeal. After the reversal of the former judgment, the plaintiffs amended their petition at the April term, 1893, of the Macon circuit court. After setting out the contract in full, together with the specifications, plaintiffs allege that between the 7th day of February, 1887, and the 19th day of January, 1888, on which last day the last work was done and materials furnished, plaintiffs did and performed all the work and labor and furnished all the materials required of them by the terms of said contract, and also furnished materials and did extra work under the terms of said contract in section 115, in division 4, of said railway, in the counties of Chariton, Linn, and Macon, amounting in all to the sum of $679,206.68, setting out the various items in detail, and admitted payments and credits to the amount of $490,894.94. There were also allegations as to the rights and liabilities of the other defendants, and the filing and recording of the lien. Plaintiffs then proceeded to assign as breaches of this contract that defendants' engineers fraudulently and willfully misconstrued the contract, and did not classify and measure said work from time to time as required by the contract, but made only approximated or percentage estimates, calculations, and measurements, with intent to defraud plaintiffs out of their just rights and benefit the railroad company. It is then specified, under nine different specifications, wherein the measurements and estimates were fraudulent. Plaintiff's further averred that the engineers of defendants did not at the completion of the work certify, as required by the contract, the completion of the work and labor, and the furnishing of said material, although often requested, and although a reasonable time had elapsed after the completion of the work before the commencement of this suit, but fraudulently neglected to do so in order to defeat plaintiffs' right to the lien conferred by law for the balance due them. The defendants' answer consisted — First, of a general denial. Second. "Defendants, further answering, say that, during the progress of construction by plaintiffs of that part of defendants' railroad covered by their contract, they were furnished from month to month with estimates by the chief engineer of defendants and his assistants, showing the quantities and amounts of the several kinds of work done by the said plaintiffs under their said contract, and that they were fully acquainted with the basis upon which said estimates were made, and the methods by which the results therein contained and set forth were arrived at; that with such knowledge the said plaintiffs acquiesced in said estimates, and submitted to the same, and expressed their satisfaction therewith, as to all that part of the work covered by their contract comprehended in division two (2) thereof, extending from section seventy-five (75) to section nine...