Tennesse & Coosa Railroad v. Armstrong , 112 Ala. 80 ( 1895 )

McCLELLAN, J.

This cause has been twice before in this court on appeals by the present appellant, the Tennessee & Coosa Railroad Co.— (93 Ala. 614 and 99 Ala. 331). We shall adhere to the opinions -delivered on these former appeals in respect of those of the questions, now again presented, which were then considered.

On the first appeal, it was held, among other things, that where, under a contract for work and labor and materials, the work and labor has been done and performed in part and materials have been in part supplied, and after this the party obligated thereto has been prevented by the other party from doing and performing the remaining work and labor and furnishing the remaining stipulated material, he may in one and the same action sue upon the contract for the compensation provided for therein for his labor and material performed and furnished under it, and also for the profits he would have realized from a full performance and discharge of his undertaking had he not been prevented from such full performance and discharge by the other party. — 93 Ala. 621. And we do not understand the correctness of this proposition to be seriously controverted as it is here reproduced from the former opinion. But it is.said for appellant that when, as was the fact here, the plaintiff claims in his original complaint under the contract, and only an amount due for work and labor and materials performed and supplied according to its terms, the only breach of the contract imputed to the defendant being his failure to pay for these items according to its stipulations, lie cannot afterwards by amendment present another claim for profits which he would have realized for work and labor and material which the defendant wrongfully prevented him from performing and furnishing, because this would be to introduce a new cause of action by amendment which is not allowable. Now this is precisely the form this question assumed when the case was first here : the point was made in precisely this way — an objection to the addition to the original counts, for money due under the contract as performed in part, of a count for profits plaintiffs were prevented from making by not being allowed to fully perform the contract. So that, while what is said in the opinion would not necessarily cover the question, yet when regard is'had to the record in that case it is clear that the contention now made by the appellant in this connection was there presented, and fully determined in favor of the appellees.

But beyond all this, the present 'record furnishes no basis for this contention : it does not arise, the point is not made so as,to authorize us to pass upon it on the present appeal. It is a question of pleading, and for the decision of the court, not of fact for the jury. It should have been presented to the court in some appropriate way, by objection to the allowance of the amendment whereby the claim for profits was injected into the case, or, the amendment having been allowed, by a motion to strike out the new counts. This record shows no such objection or motion, nor any ruling by the court in settling the pleadings having any bearing on this matter. The defendant pleaded to all the counts, the general issue and several special pleas ; and upon the-issues thus made the case was tried and submitted to the jury. On this state of the record, if the plaintiffs proved the averments of each count of the complaint, assuming the counts to have been good in and of themselves severally, and the defendant failed to make good its special defenses, plaintiffs were entitled to a verdict upon each .count, or to a general verdict, wholly regardless of a misjoindér of counts, or of the fact that the original counts went upon the contract treating it as continuing, and the counts added by the amendment treated the contract as having been brought to an end by the defendant, and claimed damages for not being allowed to fully perform and discharge it. So that both upon the former decision and on the case as now presented, apart from that decision, our conclusion is that the court properly refused the several charges requested by the defendant which proceeded on the idea that a recovery could not be had both on the original and added counts because the latter were inconsistent with, or. constituted a departure from, or, for any reason, were improperly j oined to the former.

The testimony of 0’Hearn and Ludwig to which defendant objected went to show the cost of doing certain classes of the work contracted for at one point on this line of-road, which was about sixty-six miles in length. These classes of work, the excavation and removal of earth, loose or broken rock and solid rock, were common to the whole line ; and the elements which went to make up the cost of the excavations were, in the main, the same along the whole line, leaving out of consideration in this connection the solid rock excavations contemplated to be done at Fort Deposit Bluff. There was some difference in the character of soil to be excavated at different places, being of a sandy and gravelly kind where 0’Hearn had worked, red clay on another part of the road, and “white sticky” earth on another. It is contended in the briefs of appellant’s counsel (and said arguendo in the abstract) that the cost of excavating sandy soil is something less than that of excavating red and white clay; but we do not find this borne out by the evidence. To the contrary all of the witnesses for the defendant, except one, puts the cost of earth excavation on division A of the road, where O’Hearn worked in sandy soil, the same as on division B, where there was red and white clay; and the one witness who makes a difference — McDonald, the engineer of the railway company which appears to have succeeded to the defendant’s rights and liabilities in the premises— testifies that the cost of earth excavation is slightly greater on division A than on division B. And it is not contended that the cost of rock excavations, leaving out said bluff, was greater on other sections than it was where O’TIearn worked. It would seem to be clear, therefore, that all this testimony of O’Hearn and Ludwig as to the cost of the excavations made by the former was relevant and pertinent to the inquiry as to tlie cost of tliis work per cubic yard all along the road, and afforded, fairly and justly, bases for inferences to be drawn by the jury as to the cost of the work which plaintiffs had contracted to perform. And the cost of doing the work was a necessary factor in estimating the profits which plaintiffs would have made had they been allowed to carry out the contract. If we assume plaintiffs were to perform the contract themselves directly and not-through sub-contractors, such cost and the contract price to be paid plaintiffs were the two main factors in the estimate to be made by the jury. This we no not understand to be controverted; but appellant’s counsel insist that inasmuch as it is made to appear in the ease that plaintiffs had no intention of doing the work except through sub-contractors and had made arrangements only to that end, their profits would bear no necessaiy relation to the difference between the cost and the contract price of.the work, but would be entirely represented by the difference between the prices fixed in the sub-contracts and those fixed in the contract in chief, and hence, it is insisted, evidence of cost is not pertinent. We may grant this proposition in the main without concurring in the conclusion just stated. While it is true that it was never in the contemplation of the plaintiffs to carry out this contract personally,' but that they all along intended to have the work done and materials furnished by sub-contractors, and to that end had made all their arrangements, to such extent indeed that parties desiring to enter into such sub-contracts covering all but one mile of the road, were being negotiated with and were ready to enter into such contracts and go at once to work to perform them, yet it is also true that none of these contracts had been actually closed at the time the contract in chief is alleged to have been broken by the defendant, though the only reason they had not 'been made appears to have been that the work these persons proposed to do was not ready for them. Now, the fact that there was a wide or a narrow difference between the price the defendant had agreed to pay and the cost of doing the work bore directly upon the feasibility of plaintiff’s closing these sub-contracts'‘and having the work done by sub-contractors at a profit to themselves, the plaintiffs; and if this difference between cost and price were shown to be very considerable the fact tended to show that plaintiffs, after allowing a fair profit to the sub-contractors, would still realize for themselves a profit under the contract in chief. Of course, this evidence was not sufficient by itself to authorize a verdict, because of itself it did not show what proportion of this difference plaintiffs would have received, but it was- none the less pertinent and competent on that account when considered in connection with other evidence which we find in the case going to show, not exactly the proportions in which the defference between cost and price would have been divided between plaintiffs and their sub-contractors, but the gross profits the plaintiffs would.have made, as we shall see further on. On these considerations, we conclude that the testimony of O’Hearn and Ludwig was properly received.

The statements of estimates made out and rendered by Nourse to the defendant were not admissible as evidence. By the terms of tire contract, the estimates certified to by the engineer in chief,. were to be accepted as correct, and were binding upon both • parties, but this provision of the agreement did not include any other estimates. Those by Nourse were ex parte, and were made by him for the defendant as their agent, and for their own purposes. These statements were not sworn to, and fall within what is denominated hearsay evidence. They are of the same character as the reports of section foremen or engineers of railroads made of injuries and casualties which occur in operating trains, and which we held in the case of Culver v. Ala. Midland R’y Co., 108 Ala. 330, to be inadmissible as original evidence. The court erred in the admission of1 these statements.

It is argued that the plaintiffs are not entitled to recover unearned profits because, as is insisted, the evidence does not show that they were prevented from carrying out and performing the contract by the defendant. This .position is not well taken. There was evidence going to show such prevention in a legal sense. The contract stipulated for monthly payments of ninety per cent, of the contract price for work done the preceding month. A good deal of work — all it seems that defendant’s engineer had allowed plaintiffs to proceed with — was done during the months of June, July and August. The payments stipulated to be made on July 10th for the June work and on August 10th for the July work had not been made. For these breaches of the contract the plaintiffs had a right to treat it as at an end. They elected to so treat it; and the latter part of August they wrote to the defendant about this matter of delinquent payments and asked whether they should continue the work; the inference being that they would continue if the payments were made, or if they had assurance of the payments being made. And in reply the defendant telegraphed them in effect to quit work. If the jury should find these to be the facts, they would have been fully justified in' the conclusion that- plaintiffs were in legal contemplation prevented from completing the contract by the defendant.

Again, it is insisted, and instructions were requested upon that idea by the defendant, that no evidence was adduced tending to show the amount of profits plaintiffs would have made if they had been allowed to fully perform the contract; and, lienee, that no data was furnished the jury upon which to assess damages as for profits. There, would be much force in this position if the case stood upon the testimony drawn out by the plaintiffs. But. it does not. The defendant on the cross-examination of Danforth elicited the following statements : (1) that the cost of doing the work as to .which he had deposed, was the cost to the plaintiff*, Danforth & Armstrong ; (2) that plaintiffs had made an estimate of their profits on the sub-letting of the work ; and (3) that they estimated their profits on division A at $20,000 and on division B at $112,000, making a. total of $132,000, “in addition to what was alreadjr due for work already done by sub-contractor O’Hearn on division A.” The tendency of this evidence ivas to show the profits the plaintiffs would have realized from the performance of this contract through sub-contractors had they been allowed to proceed in this way with the work. The 'instructions requested by defendant bearing on this point were, therefore, properly refused.

But whether this evidence showed the amount of such profits to the reasonable satisfaction,of the jury was for them to consider and determine. (jj/ery clearly on the undisputed facts, the measure of plaintiff’s damages as for unearned profits was the difference between the prices defendant had agreed to pay .them for the work and what it would have cost them to have the work done by sub-contractors, affected, it may be, to some extent by the consideration that as the work was not done at all, plaintiffs were relieved from the care, responsibility and expenditure of time involved in looking after the sub-contractors : plaintiffs are clearly shown to have had no intention and to have made no arrangements to carry out their contract with the defendant otherwise than through" sub-contractors. Jit is also shown without conflict that, while"* plaintiffs were in negotiations with third parties to do the work, and that such, third parties were prepared and ready to enter upon it as soon as contracts with them were made, and, further, that such contracts had not been closed only because defendant’s engineer was not ready for them to go to work, yet they had not at the time of the alleged breach of the contract by the defendant entered into sub-contracts with such third parties for the doing of that part of the work for which they now claim profits which they insist they would have made but for such breach, j] Now, assuming a conclusion on the part of the jury thaT the estimates deposed to by Danforth were based upon the prices plaintiffs would have paid subcontractors, the fairness and reasonableness of such estimates on that basis, the credibility of Danforth’s testimony in that behalf, were, of course, still' open to the consideration of the jury, and the3r had a right to look at all facts and circumstances pertinent to the inquiry in adopting, scaling or rejecting Danforth’s estimates. Ordinarily, under an unperformed 'contract for work and labor of the kind stipulated for here, in estimating the profits which it is alleged would have been realized from a performance, every act and incident which under normal conditions would have attended upon the actual performance of the contract and affected the cost of doing the- work must be taken into the account. Plaintiffs did not controvert this proposition on the trial below; but they admitted as witnesses that in making the estimates of profits to which they depose, they did not take these things, the concomitants of a performance by them of the contract, into consideration, and they testify, and their counsel contend in argument, that these considerations were for the sub-contractors and not for them, and that however much accidents, explosions, sickness of laborers, bad weather, &c., &c., might have increased the cost to the sub-contractors of doing the work, they, the plaintiffs, would be -wholly unaffected thereby, since their profit was represented by the difference between the prices fixed respectively in the original and sub-contracts, and this they would have received in any event. This theory would be correct in the main in cases where the work has been actually let to responsible sub-contractors. But that is not the fact here. No sub-contract had been in fact entered into, as we have seen, nor is it shown at what prices for doing the specified work any sub-contract could or would have been made. In making the contemplated sub-contracts, the contingencies referred to would naturally have found accommodation in an increase of the price which the sub-contractors would have insisted upon, a price to be nominated in those.contracts beyond the cost of doing the work with all the conditions, auspicious and favorable, with a fair profit to the middle men added; and such increase of price would, of course, have gone to lessen the difference between the prices defendant had agreed to pay plaintiffs and those plaintiffs had agreed to pay the Subcontractors, and by so much to cut down plaintiffs’ profits. It is obvious, therefore, that the position of appellees in this matter is untenable, and that, to the contrary, the contingencies of bad weather, sickness, accidents and the like were factors to be considered in estimating their profits, for the same reasons and to the same extent they confessedly would have been material and important had there been no expectation or intention of subletting the work. Charge 43, which is as follows : “In determining whether the plaintiffs would have realized profits if they had been permitted to execute the contract, the jury will take into consideration the various circumstances which the proof may show it would be necessary to -include in order to estimate accurately the cost of doing the work. For instance, such as good or bad weather, sickness of hands, accidents by explosions, and damages resulting therefrom. It would not be proper for you, if you should .conclude that the plaintiffs were entitled to anything, to. fail to give due and proper weight and effect to all the contingencies, uncertainties, and accidents that the' proof may show would, or might, affect or increase the cost at which plaintiffs could have done the work, ” should have been givenT).

The public is entitled to the free, uninterrupted and unobstructed use of every part of a navigable river, from bank to bank and throughout the length of its navigability, which, at the ordinary stage of the water, is of such depth and of such accessibility with respect to the current or main body of the stream as to be capable of navigation by boats or of valuable floatage in connection with the main bixty of the stream either up and down or across the river or from the main stream onto any particular part in question, or thence onto the body of the stream ; and this whether such part lias ever been so used and whether there is airy present or anticipated necessity for so using it. Any obstruction of the navigable parts of such stream as thus defined is unlawful per se, whether such obstruction affects, one way or the other, those parts of the stream which only have always been and are at the time being used for the purpose of navigation, and which only may be in the judgment; of witnesses, or as matter of conclusive fact, necessary to the navigation of the stream. This is not to say that foreign bodies or substances may not lawfully be placed between what are usually spoken of as the banks of the river. There may be between a bank of a river and the water at ordinary stage a strip of land such as would be termed a beach in speaking of tide waters ; and upon this foreign bodies or substances may be placed.' Or there may be permanent shoals next the bank where the water is too shallow to admit of navigation. Or there may be next the bank water in and of itself of sufficient depth for navigation but lacking in navigable connection with the stream and lacking also in sufficient extent to be navigable waters dissociated from the stream. In all such cases foreign substances or bodies may be deposited, provided they do not and will not directly or indirectly interfere with the use of any of those parts of the stream which are navigable within the principles stated above. With this explanation of what was said on the last appeal as to it being a question for the jury whether the blasting of Fort Deposit Bluff into the Tennessee river would obstruct navigation, we adhere to that decision. The plaintiffs had a right to deposit the rock, then to be blasted, into the river, that is into the space between tbe banks of the river, provided it could be done, without obstructing — not the navigation of the stream as it always had been, was being and, even, probably always would be carried on - but — the navigability of any part of the stream as we have attempted to define navigability. And we deem it unnecessary to pass upon the action of the court on charges requested in this connection, since the case is to be tried again whatever conclusion we might reach in that behalf, and what is here said will sufficiently advise the lower court of our views for the purposes of another trial.

Several of the charges refused to the defendant have reference to remote and speculative damages, and are to the effect that such damages are not recoverable, etc., etc. All these were properly refused. They were abstract and their only tendency would have been to confuse and mislead the jury. There was no question of remote or speculative damages in the case. No such damages were claimed in the complaint and no evidence was adduced in proof of such damages. The profits which the complaint counts upon were held on former appeals to be proximate damages, and recoverable if proved. There was a question on the last trial whether these proximate damages were proved. The charges under consideration fail to discriminate between remote damages and the proof of proximate damages ; and their only possible effect in the case would have been to mislead the jury to disallow the proximate damages claimed, and which the evidence tended to prove, on the idea that they were speculative, though they might have been satisfied that the evidence established that they had been suffered by the plaintiffs. All these charges were bad for being abstract in a sense and in that they involved this tendency to mislead and confuse the jury.

~We deem it unnecessary to discuss other rulings of the city court, further than to say we find no error in them, as what we have here said, together with the former opinions in the case, will sufficiently bring our views of the case to the attention of the trial court.

Reversed and remanded.

Brickell, C. J., not sitting.