Winston & Co. v. Clark County Const. Co.

• Decision Date: 16 January 1920
• Citation: 217 S.W. 1027,186 Ky. 743
• Parties: WINSTON & CO. v. CLARK COUNTY CONST. CO.
• Court: Kentucky Court of Appeals

217 S.W. 1027

186 Ky. 743

WINSTON & CO. v. CLARK COUNTY CONST. CO.

Court of Appeals of Kentucky.

January 16, 1920

Appeal from Circuit Court, Clark County.

Action by the Clark County Construction Company against Winston &amp Co., a partnership. From judgment for plaintiff, defendants appeal. Affirmed.

Pendleton & Bush, of Winchester, for appellants.

J. M Stevenson, of Winchester, for appellee.

THOMAS J.

The appellant and defendant below, Winston & Co., is a partnership, and will hereafter be referred to as defendants. The appellee and plaintiff below, Clark County Construction Company, is a corporation, and will hereafter be referred to as plaintiff.

The plaintiff, claiming a contract with the defendants to construct a concrete culvert and a concrete viaduct on a line of railroad between Winchester, Ky. and Irvine, Ky. brought this suit to recover the unpaid balance of $5,048.43 alleged to be due it in the performance of such work.

The answer was a denial of the allegations of the petition, and the jury, impaneled to try the issue as to the existence of the contract, returned a verdict in favor of plaintiff. The issue as to the amount due plaintiff, if anything, involving complicated accounts, was referred to the master commissioner of the Clark circuit court, and he reported a balance due it of $3,704.10. Both parties filed exceptions to the report some of which were sustained and others overruled. The court gave judgment in favor of plaintiff for $3,542.86, and to reverse that judgment the defendants prosecute this appeal.

The defendants are engaged in construction work, and in the year 1913 they had a contract with the Louisville & Nashville Railroad Company (hereinafter referred to as the railroad company) to construct a new line of railroad from Winchester, Ky. to Irvine, Ky. They sublet the work in sections to other contractors, one of whom was the Jones-Gray Construction Company (hereinafter referred to as the subcontractor), who had a contract for a three-mile section, and in which it was necessary to build a box culvert at one place and a viaduct at another. In the original contract between the defendants and the subcontractor it was stipulated that these structures should be built of wood, but it is said by the attorneys that the contract provided that if the railroad company should conclude before the completion of the work to have the structures made of concrete, the subcontractor would do so, receiving therefor increased pay for that character of work.

Under the contract between the railroad company and the defendants the entire work, including that section sublet to the subcontractor, was to be completed some time in October. Before the latter part of July the railroad company concluded to have the culvert and the viaduct made of concrete, and so notified the defendants, who mentioned the matter to their subcontractor, whereupon there was some dispute as to whether the latter was compelled under its contract to construct the work in the altered form. It seems, however, that this was soon agreed to, and the subcontractor approached plaintiff, it being engaged in doing concrete work, to build the culvert and viaduct, they being at stations 884 and 885 in the line of railroad being built by the subcontractor.

In the negotiations which followed, the subcontractor submitted to the plaintiff a list of prices, as well as stipulations for the concrete work, and the latter declined to undertake it at the prices submitted. Subsequent meeting of the parties resulted in no further progress, and about the last of July or the first of August the plaintiff's president, and also its general manager, went to the office of defendants, who were anxious for the work to be completed in the time specified in their contract, and plaintiff proves by its president and also by its general manager that in this meeting there was an oral contract agreed to, in which the price for each item of the work, as well as material, was stipulated, and plaintiff soon thereafter moved its machinery to the place where the concreting was to be done and commenced work. The first estimate for work done by it was due on September 20th following. It was made out, but the railroad company declined to pay, because plaintiff had no written contract. Application was then made by plaintiff to defendants to reduce the contract to writing, which up to that time rested in parol only, and on October 10, 1913, defendants sent to plaintiff a prepared contract dated September 25th, accompanied by this letter:

"Winchester, Ky. October 10, 1913.

The Clark County Construction Company, Winchester, Ky.--Gentlemen: Inclosed we send you contract between yourselves and the Jones-Gray Construction Company for concrete work on the Jones-Gray Contract.

On receipt of the inclosed contract signed by you, we will then give you memorandum of agreement between W. & Co. and yourselves.

Yours very truly, Winston & Co."

The next day plaintiff returned the contract to defendants unsigned, with a letter pointing out wherein its terms differed from those orally agreed to, that difference consisting in the price to be paid for the construction of the two abutments to the viaduct, and for three other items relating to the price of sand, cement, etc. Later plaintiff received the contract sued on from the subcontractor, with the suggested alterations therein with reference to the three items of the cost of material, but it did not contain what plaintiff claimed to be the contract with reference to the construction of the abutments. Plaintiff added that clause, and returned the contract to the subcontractor, inasmuch as it had been sent by the subcontractor, and it was signed by the latter on November 8, 1913.

It would serve no useful purpose to set out the contract in full in this opinion, since it is quite long, and would throw no light upon the questions involved. Suffice it to say that it purports on its face to be executed between the subcontractor on the one side and the plaintiff on the other.

One of the chief contentions urged by defendants for a reversal of the judgment is that the contract sued on was never entered into by them, but that it was one exclusively between the subcontractor and plaintiff. On the trial before the jury which found this issue in favor of plaintiff, its president and also its general manager both testified that the contract was with defendants, and not with the subcontractor. Opposing this, defendant's general manager testified that his company entered into no such contract, and Mr. Jones, an officer of the subcontractor, gave the same testimony.

It is also urged in behalf of defendants that they already had a contract with the subcontractor for the work out of which this litigation grows, and there was no need to make a contract with another for the same work. The fact that the contract on its face purports to be one made between plaintiff and the subcontractor is another circumstance relied on by defendants, who say that they did not write the letter quoted above, of date October 10th, but that their stenographer, without their authority, wrote it. But, be this as it may, before the contract was signed by the subcontractor, and while plaintiff was making efforts to have the contract reduced to writing, defendants wrote plaintiff a letter of date October 21st, in which they said, inter alia:

"Confirming our verbal agreement, we hereby guarantee that if the price of $10.25 per cu. yd. for concrete, $1.10 for screenings or sand and one and one-half cents per pound for placing reinforcing iron, does not give you one ($1.00) dollar per cu. yd. profit on the construction of the two abutments for viaduct at station 855, we will pay to you (on completion of the work) such sum as may be required to give you a profit of one ($1.00) dollar per cu. yd. on concrete placed in these two abutments."

Plaintiff claims that this letter, which was intended to be a contract did not set forth its full terms, but the excerpt taken therefrom shows that there had been a "prior verbal...