St. Louis, Iron Mountain & Southern Railway Co. v. Clark , 90 Ark. 504 ( 1909 )

Hart, J.,

(after stating the facts). It is insisted by counsel for appellant that the contract in question is lacking in mutuality. We cannot assent to the soundness of that contention.

“Mutuality of -contract means that an obligation must rest on each party to -do or permit to be done -something in consideration of this act or promise of the other, that is, neither party is bound unless both are bound.” 7 Am. & Eng. Enc. of Law, (2d Ed.) p. 114. Continuing on the next page, the same writer says: “Just as there must be two or more parties who contract, so there must be some sort of mutual interchange of benefits and concessions, the delivery of a consideration by one and the assumption of an obligation by the other to complete the transaction.”

This rule is so well established both by text writers and by adjudicated cases as to render further citation of authorities unnecessary; but the lack of mutuality has no application under the facts as disclosed by the record.

Clark says that he made his bid for the excavation work upon the express promise of Mr. Tyler that he would furnish the cars and take away the dirt; that Tyler promised to furnish the cars in sufficient number and in proper time to complete the work. Tyler, at the time, was general superintendent of appellant railway company, and admits that he had this agreement with Clark. The authority of Tyler to make whatever contract he did make in regard to the matter is conceded by counsel for appellant. Clark acted upon the promise made by Tyler, and made his bid to do the work of excavation upon the express understanding that' the railroad would take the material excavated. In this case Clark contracted with third persons to make certain excavations for them, and the bid for the work was offered and accepted after the railway company had agreed to haul away the material excavated. We cannot see any difference between this agreement and one-where the railroad company owned the ground and should contract with Clark to make the excavation with the understanding on its part to haul away the materials excavated. Clark undertook certain obligations upon the promise of the railroad to perform certain acts in' reflation to the obligation.asumed by him. Clark bound himself to perform his contract, and would have been liable in damages for a breach of it. The railroad became equally bound to perform whatever agreement it made as a matter of inducement to Clark to enter into the contract to do the excavation, and there was no lack of mutuality.

2. The owners 'of the lots upon which the excavation was made, in advertising for bids for the work, used the following language: “Officials of the railway company have assured the-owners of their desire to provide cars for and to remove the earth loaded thereon during the progress of excavations, should the contractors so desire. Each contractor will be expected to verify the above proposition.”

This advertisement was admitted in evidence over the objections of appellant, and its counsel now predicate error on its-admission. Conceding it to be error, it was harmless error. Appellee says that he met Mr. Tyler, the general superintendent of appellant, before his bid was made, and that Mr. Tyler confirmed the advertisement. Mr. Tyler admits this, and the only point of difference between him and appellee in regard to the agreement is as to the manner of the removal of the materials excavated.

Therefore, treating it as incompetent evidence, it was evidence of an admitted fact, and was not prejudicial. Henry v. State, 77 Ark. 453; Waters-Pierce Oil Co. v. Burrows, 77 Ark, 74; Standard Life & Accident Ins. Co. v. Schmaltz, 66 Ark. 588.

For the same reason, the testimony of Plunkett, the owner of the ground to be excavated, and Thompson, the architect, as to conversations had with Tyler before the contract was made was not prejudicial. That is to say, their testimony was in regard to undisputed matters.

3. Counsel'for appellant assign as error the admission of testimony with reference to the lease of the steam shovel by appellee. They base their objection upon the testimony of Superintendent Tyler. He testified that he did not know that a steam shovel was to be used in making the excavation. That he had had years of experience in similar work, and had never known of a steam shovel being used upon work of this kind. On the other hand, appellee testified that the use of the steam shovel was practicable, and that it was the usual and cheapest way of doing Work of that kind. Before the work was commenced, appellee says that he went to Tyler for the purpose of renting a steam shovel, with which to excavate the dirt and load it on the cars, and that Mr. Tyler said: “We can’t'furnish the shovel.” Appellee says that he then left and hired a steam shovel from Dalhoff. Tyler admits having this conversation with appellee, but says that in the conversation he tried to discourage the operation of the steam shovel because it was the wrong way to do the work.

This testimony was competent as tending to show that the use of a steam shovel was in contemplation of the parties at the ■time the contract was made; for the jury might have inferred from it and the other circumstances adduced in evidence that if the use of the steam shovel had not been contemplated by Tyler he would have said in plain terms that the use of it was not according to his understanding of the contract, instead of merely advising against the use of it.

4. Counsel for appellant insist that the testimony of appellee as to certain conversations had by him with Herschman, Greene and Pollock was incompetent, and predicates error on 'the action of the court in admitting it before the jury. The portions objected to appear in the statement of facts in quotation. The testimony was competent. Herschman testified that he had no knowledge of the details of the contract except as given him by Clark. Clark’s conversation with him as quoted was competent for the purpose of contradicting him and as tending to show that he was familiar with the terms of the contract before talking with Clark. It will be remembered that Plerschman was the chief clerk in Tyler’s office; Tyler admitted that he had given some instructions to Greene in regard to the furnishing of cars, and his conversation with Clark was admissible for what it was worth in tending to show that he was carrying out the instructions given him. The same may be said of the conversation with Pollock, the yardmaster. It is admitted that Tyler had authority to make the contract, and of course whatever instructions he gave to his subordinates in regard to carrying out the contract was binding upon the railway company, and the conversations referred to in quotation were admissible as tending to show that Hershman, Greene and Pollock were carrying out the instructions given them by Tyler, and thus corroborating Clark’s version of the terms of the contract or agreement with Tyler.

The telegrams quoted in the statement of facts were admissible for the same reason. Tyler admits receiving the telegram from Greene, but says Plersohman answered it. According to Tyler’s ’testimony, he made an agreement with Clark to move the earth, and then took no further notice of the matter until he ordered the work stopped. Herschman was with Tyler in his-private car when Tyler received the telegram.- It was a question for the jury to decide whether Herschman would have answered a telegram sent to and received by Tyler, without instructions to do so. Then the telegrams were admissible as tending to show that the furnishing of cars had been done and was being carried out under -the directions of Mr. Tyler.

We have carefully considered -the instructions, and, without reviewing them separately, it is sufficient to say that, when tested by the -principles of agency already announced, we think they fully and fairly submitted to the jury -the conflicting theories of' the parties to the suit.

Finding no prejudicial error in the record, the judgment is affirmed.