Citation Numbers: 109 Me. 350
Judges: Cornish, Haley, King, Savage, Spear, Whitehouse
Filed Date: 9/24/1912
Status: Precedential
Modified Date: 9/24/2021
This case comes before the court on report. It involves only a determination of certain disputed questions of fact. The plaintiff, on June 9, 1909, entered into a written contract with the defendant to construct for it the roadbed of a railroad. The contract itself was silent as to the location of the proposed railroad on the face of the earth, except that the plaintiff’s bid, which was made a part of the specifications, stated that it was to be from “Presque Isle to Washburn.” But the plaintiff claims that prior to the making of the contract the defendant’s president, and promotor, Mr. Gould, pointed out to the plaintiff’s president, Mr. Charles Murray, and his brother 'Michael,, also connected with the plaintiff company, the proposed location as being wholly within the limits of the highway leading from Presque Isle to Washburn, and that the contract was made with reference to such a location; that after it had begun work at a point on that location, the defendant directed the work to be changed to a new line which was out of the highway, and which if continued' would1 run through fields, woods and swamps, for practically the entire distance; that it thereupon protested against the change for the reason that the proposed location was not the one contemplated by the contract, and that to build a roadbed on this line would be less profitable to it than to build one within the highway limits; that thereupon, and in consideration of the plaintiff’s assenting to the change in location, the defendant agreed in effect to compensate the plaintiff for the additional expense and difficulty occasioned by the change, and to pay what the labor and materials used in constructing the roadbed on the new location were reasonably worth, and that under this new agreement, which was an abandonment of the original contract as to prices, the plaintiff continued the work until October 5, 1909, at which time a further change in the contract was agreed to.
The defence, in a word, is that no location within the highway limits was ever pointed out to the plaintiff as the one on which the roadbed was to be constructed, and that the location upon which the roadbed was constructed was the one, and the only one, contemplated by the contract, and was so understood by the defendant’s officers at the time the contract was made. And it is denied that the plaintiff was prevented from completing its contract, as it now claims. This states the major issues. But the case is filled up with denials and contradictions, back and forth, as to the circumstances which the parties respectively rely upon in support of their contentions under the major issues. The question resolves itself largely into one of credibility of witnesses.
To illustrate. Mr. Charles Murray, plaintiff’s president, testified that he and his brother, since dead, were shown along the whole length of the highway route by Mr. Gould personally, before the contract was made, Mr. Gould denies this, and testifies that instead of going himself with the Murrays, he sent an employee, since dead, with instructions to show them another route, called the Marston survey, substantially the one afterwards built upon. Mr. Gould says that before the contract was made, he showed the
It appears that the defendant was chartered by the State as a street railroad company, and that its chartered powers have never been enlarged. In 1902, a location was surveyed from Presque Isle to Washburn by one Southard, and a map thereof was made. This location was mostly in the highway. It seems to have been legally approved. In 1903, another location was surveyed by one Marston. This location was mainly out of the highway, and avoided
Upon these facts, that the defendant is chartered only as a street railroad company, and that, about the time the work begun, it filed with the county commissioners its approved location in the highway, with map, and has filed no other, the plaintiff bases a strong contention that at the time the contract was made the defendant contemplated building only a street railway in the highway, and not a freight railroad through the fields and woods, and therefore that the contract related only to such a street railway. And of course that is the vital issue in this part of the case.
Inasmuch as on July 6, 1909, the defendant was actually having its roadbed constructed outside of the highway, along the general line of the Marston survey, which was tied to the highway only at certain points, it is difficult to see what was the purpose of filing the Southard highway location with the county commissioners. It was necessary to file-that location before commencing construction thereon, but it was not necessary to file it before constructing elsewhere. The case, we think, clearly shows that the defendant was constructing its railroad over land it had purchased or bargained for, and not over land that then had any status as a location. It was taking its chances as to getting an approval from the railroad commissioners afterwards. It had a right to erect a railroad structure on its own land, but it would not have a right to operate it as a railroad without an approval of its location by the railroad commissioners. We cannot help thinking that the place where they
Further, as bearing on the claim that the line actually built upon was not the one intended when the contract was made, it appears that though it closely followed the Marston survey, it was not coincident with it. The actual line had not been surveyed through when the work of construction was commenced, but the defendant’s engineer’s surveyed it along just in advance of the plaintiff’s work.
In August following, the defendant petitioned the railroad commissioners for an approval of the route upon which the roadbed was being constructed. The commissioners approved it in part only. And at the northerly, or Washburn end, the defendant was obliged to abandon, for a time at least, some work already constructed, turn its road into the highway, and follow the 1902 location. The plaintiff then objected to going on with the work under the existing agreement, whatever it was. To use Mr. Murray’s own language, “The work was so light, comparatively, the yardage was very small, and it was so late in the season, and he wanted us to build a temporary road on the highway, I refused to do that work under any price, considering the location and the time of year.” The result was that on October 5, 1909, a supplemental written agreement was made to continue the work on “force account,” as it was called, that is, the defendant agreed to pay for grading on a basis of the cost of the same to the plaintiff, plus ten per cent. The supplemental contract also provided for track laying and1 ballasting, which was not named in the original contract, and for payment therefor on the same basis of cost, plus ten per cent. In the supplemental contract it was agreed that in all respects not modified or varied therein 'the contract of June 9 should remain in full force and effect.
The defendant, in argument, places great reliance upon these facts, (1) that although the plaintiff claims the original contract was abandoned at the outset as to prices, nevertheless all the payments from month to month until the supplemental contract was made were computed, and were made and received, strictly in accordance with the terms of the first contract; (2) that although when the supplemental contract was made the defendant was owing it, as it now claims, more than $18,000 in excess of what was due
These are the arguments of the parties based upon the testimony of witnesses, and upon conduct. And without making further special analysis, we may say that if this were all 'that appeared in the case, we should have grave doubts whether we ought to hold the plaintiff has fairly sustained the burden of proof.
But the defendant contends, and we think justly, that there is internal evidence in the original contract itself that is decisive in its favor. Remembering now that the primary issue is whether that contract was understood by the parties to refer to a railway roadbed constructed along a highway, and necessarily within its limits,
No fraud or deceit is suggested.. The contraot seems to have been fairly entered into by the plaintiff, and we must assume that its contents were known to the plaintiff’s officers who authorized its execution. In the first place it makes no reference in terms to either of the disputed locations, nor does it suggest that a street railway,—a railway in the highway,—was contemplated. It mentions only “a first class single track railway” from “Presque Isle to Washburn.”
The contract provides “for clearing off all the timber, brush, and stumps, where the line passes through wooded land;” for cutting off “all trees and stumps” close to the ground, or, in some cases, two feet below sub-grade; for constructing cross-ways “in swamps or soft places;” for laying the track “across farm crossings and public highways;” for constructing “farm crossings;” for commencing work “before the fencing is built,” and holding the plaintiff responsible for all damage “to crops on adjoining lands;” for “earth cuttings” 'twenty feet wide; for widening the cuttings when material is required “to make up fills;” for “embankments” fourteen feet wide at sub-grade; for “rock cuttings” twenty feet in width; in rock cuttings for “ a water channel” on each side of the roadway “'two feet wide and eight inches deep;” “in standard earth cuttings,” for a channel on each side “four feet wide and one foot deep;” for “ditches at the side of embankments;” for the excavation of “off-take ditches beyond the limits of the railway ground's,” where the drainage could not be conveniently carried off by the side ditches; for “embankments on side hill grounds;” for “stones or boulders found in excavations measuring more than twenty-seven cubic feet;” for the construction of roads “to -and from any point on the line of railway,for the convenience of the contractor;” for the construction of convenient passing places, wherever the line “is intersected by public or private roads.”
These are the only provisions in the contract which throw any light upon the question at issue. And it requires no argument to
This disposes of the main controversy. There are however two minor disputes. The plaintiff claims that even if the defendant’s contention is sustained on the main question, it is entitled to extra compensation for the erection of “timber in trestles.” This claim is based upon the fact, not disputed, that some of the timber furnished by the defendant for this purpose was in some respects unsound, and, having been used in construction elsewhere, had spikes and bolts in it, and was, for these reasons, more expensive to the plaintiff than would have been the case if the timber had been reasonably sound and clear, such as the defendant ought to have furnished to use. This claim is not strenuously resisted. We thinlc it is well founded. But it is almost impossible, from the scanty evidence before us on this question, to determine how much should' be allowed. The contract price was $10 a thousand. The amount earned, at contract prices, was $914.97. The plaintiff claims that it should be allowed $15 a thousand, or $1,372.45. That would mean: that it took half as long again to do the work as it would have done. The evidence does not support the claim to that extent. We think that an allowance of $200 in excess of the amount due by contract will amply compensate the plaintiff.
The plaintiff claims, further, that it was wrongfully discharged before the completion of the work under the supplemental contract. Under that contract, as already stated, the work was done “on force account.” The plaintiff furnished the laborers and charged their wages, plus ten per cent, to the defendant. The wages of common laborers, however, were not to exceed $2 a day. At the time of the alleged discharge, November 29, the plaintiff was paying its laborers the maximum rate of $2. Mr. Gould, the
' We cannot say, upon this evidence, that the plaintiff has sustained the burden of proof. Even taking Curry’s version of the interview to be the correct one, it may be doubted-whether Murray had reason to understand that Gould intended an absolute discharge. He still left it open to see if men could be hired at $1.50 a day. But there is another view of the question which we think may properly be taken: Although the supplemental contract provided that the wages of common laborers should not exceed $2 a day, that is not to be construed as meaning that the plaintiff under all circumstances was authorized to hire men and pay them $2 a day. Under this contract the .plaintiff was bound to use good judgment and to act reasonably and in good faith. It was authorized to pay such wages as were reasonably necessary, but no more, and in no event in excess of $2 a day. To pay more than was reasonably necessary would not only at the best be an exercise of poor judgment, but, in a case like this, where the more that was paid for wages, the larger the amount of the plaintiff’s percentages, or profit, would be,
The result is that the plaintiff is entitled to judgment for the $2,136.14 which the defendant admits to be due, and $200 for extra labor on the timber in the trestles, with interest from August 16, 1911, the date of the writ. All other claims are disallowed.
Judgment for the plaintiff for $2,336.14 and interest from August 16, ipn.