Woodruff v. Rochester & P.R. Co.

• Decision Date: 17 January 1888
• Citation: 14 N.E. 832,108 N.Y. 39
• Court: New York Court of Appeals Court of Appeals
• Parties: WOODRUFF et al. v. ROCHESTER & P. R. CO.

108 N.Y. 39

14 N.E. 832

WOODRUFF et al.

v.ROCHESTER & P. R. CO.¹

Court of Appeals of New York.

January 17, 1888.

Appeal from general term, supreme court, Fifth department.

Horace B. Woodruff and Marshall R. Woodruff brought this action against the Rochester & Pittsburg Railroad Company to recover for certain work done by the plaintiffs on the defendant's road. Judgment for the plaintiffs. Defendant appeals.

Bissell, Sicard, Brundage & Bissell, (Thomas F. Wentworth, of counsel,) for appellant.

Sprague, Morey & Sprague, (Norris Morey, of counsel,) for respondents.

EARL, J.

The corporation defendant was organized November 30, 1881, by the consolidation of certain New York and Pennsylvania railroad companies, and it entered into contracts with Brown, Howard & Co., a construction company, to construct and complete the unfinished portion of its road. On the first of August, 1882, that company entered into a contract with George H. Thompson & Co. to build the Buffalo division of its road, and on the eighteenth day of August, 1882, Thompson & Co. entered into a contract with the plaintiffs to construct a portion of the Buffalo division. The two contracts were in all essentials alike, except as to the amount of work to be performed and the prices to be paid therefor; the price in the former contract for excavation being 27 cents per cubic yard, and in the latter contract 20 cents per cubic yard. The plaintiff's contract with Thompson & Co., and the contract of Thompson & Co. with Brown, Howard & Co., both alike required the contractors to ‘construct and finish in the most substantial and workmanlike manner, to the satisfaction and acceptance of the chief engineer,’ etc., ‘the graduation,’ etc., ‘and such other work as may be required,’ etc.; ‘the said work to be finished as described in the following specifications, and agreeably to the directions, from time to time,’ of the engineers. Among the specifications was the following: ‘ Gradation. Under this head will be included all excavations and embankments required for the formation of the road-bed; cutting all ditches or drains about or contiguous to the road; the foundations of culverts, bridges, walls, trestle-work, and foundations of buildings; the excavations and embankments necessary for reconstructing turnpikes or common roads, in cases where they are destroyed or interfered with in the formation of the railroad; and all other excavations or embankments connected with or incident to the construction of said railroad.’ ‘ Extra Work. Nor shall any claim be allowed for extra work, unless the same shall be done in pursuance of a written order from the engineer in charge, and the claim made at the first settlement after the work was executed, unless the chief engineer, at his discretion, should direct the claim, or such part as he may deem just and equitable, to be allowed.’ In pursuance of with their contract with Thompson & Co., the plaintiffs entered upon their work, and at a certain point upon the road they cut through a considerable elevation, and, after they had substantially completed the cutting, a large amount of earth from one of the sides caved into the cutting at four different times in the months of December, 1881, and January and February, 1882, and this earth the plaintiffs excavated and removed each time. It is for the expense of this work mainly that this action was brought; the plaintiffs claiming that they did it under contract with the defendant, and for its benefit. The defendant interposed to the complaint a general denial, and an allegation of payment.

To maintain their action, it was incumbent upon the plaintiffs to show by satisfactory evidence that they did the work for the defendant under an express or implied contract with it; and this, from a careful perusal of the evidence, we think they failed to show. The contract between the defendant and Brown, Howard & Co. was not produced, and precisely what its terms were we do not know. But it appears beyond question that Brown, Howard & Co. were under the same sort of contract with the defendant to construct and complete its road. All the work was, in a general way, under their supervision, and they hired and paid all the engineers, and entered into subcontracts for the performance of the work. The proof on the part of the plaintiffs tends to show that they did this work for which the action was brought upon the request of the engineers in charge of the work, and under an agreement made with them by which such work was taken outside of their contract with Thompson & Co., and was to be paid for at cost and 10 per cent. added. We fail to find any evidence in the case tending legitimately to show that these engineers had any authority whatever from the defendant to bind it for this work, or, on its behalf, to enter into any contract with reference thereto. It is not pretended that they were clothed with any special authority so to do; and it cannot be...