Vanderwerker v. Vermont Central Railroad , 27 Vt. 125 ( 1854 )

The opinion of the court was delivered at the circuit session, in September, 1855, by

Redfield, Ch. J.

This is an action of book account to recover for work and materials expended in the construction of the defendants’ road.

The plaintiffs’ contract for doing the work was in writing, and with Belknap exclusively. They claim to recover of defendants on the ground that they did the work charged, beyond and aside of their contract with Belknap, by direction of defendants’ engineers.

The first item is for extra rock excavation for bridge abutment, $139.50. The auditor reports, “ No contract was made between the defendants and plaintiffs in relation to this service, nor was any claim therefor, in writing, or otherwise, ever made by the defendants upon the plaintiffs, till 1850.” The work was done'in 1847, by reason of an alteration in the engineer’s first plan, and after the excavation had been made according to the first plan and the work left. The charge is reasonable.

It seems to us that this claim is in principle precisely similar to that made in Thayer v. same defendant, 24 Vt. 440, and to some of the claims made in Herrick v. same defendant, decided at the last term in Washington county. It was there held that the written contract between the claimant and Belknap, would not preclude the recovery against the company, not being between the same parties, but that the difficulty in allowing a recovery directly against the company, for such extra work ordered by their engineers, was, that there not only was no written contract between the parties, but no contract whatever, either express or implied, and not the remotest ground of implying any such contract or expectation between the parties, at the time the service was performed. The whole claim against the company, is altogether an afterthought. No one one could for a moment, be led into any misapprehension as to the extent of the engineer’s authority to charge the company by varying the existing contracts, or making new ones. The engineers were there for no such purpose, they had no such agency, except under specific limitations and restrictions, and they did not, as to this item, assume to do any such thing. They doubtless had the right, under Belknap’s contract with the company, to order the alteration, and the plaintiffs, no doubt, felt bound to perform the order, under their contract with Belknap, and did perform it, expecting at the time to look exclusively to Belknap.

All the items of account in this case, seem to he of the same character, and to have been, as far as they form just claims against any one, properly chargeable to Belknap under the plaintiffs’ contract with him, and in no sense properly chargeable to defendants. So far as they were extra work, even under Belknap’s contract with the plaintiffs, there could be no recovery against him, there having been no written order of the engineer, and as directly between the parties to this suit, there could he no recovery, there being no contract, either express or implied, and no circumstances from which any such contract can be presumed. The fact, that defendants had paid similar claims to other persons, will certainly not bind them to pay this, unless that fact had been known to the plaintiffs at the time of doing the work, and operated to induce them to confide in the authority of the engineers, nothing of which appears in the case.

Judgment of the county court reversed, and judgment on report for defendants.