Coon v. Citizens Water Co.

Opinion by

Me. Justice Williams,

The plaintiffs are the contractors by whom the dams and reservoirs of the defendant company were built and its inflowing and distributing mains were laid. The work for which a recovery is now sought was mainly done under carefully drawn contracts embodying particular specifications as to the quality of the materials to be used and the character of the workmanship. The defendant set up the contracts, alleged that the work was not done in accordance with their requirements, and that it had never been accepted by the engineer of the company, to whose decision the contracts referred all questions relating to the materials, the workmanship, and the acceptance of the works. The plaintiffs replied performance under the directions of the engineer, acceptance by the officers of the defendant company and an actual taking of possession of the works and operating them for the purpose for which they were built, and that formal acceptance by the engineer had been repeatedly applied for and his action unreasonably delayed. Upon the questions of fact thus raised the jury found for the plaintiffs. The learned trial judge has not disturbed the verdict, and we must regard it as settling the questions in controversy unless it was rendered under erroneous instructions from the court. We quite agree with the learned counsel for the appellant that the provisions of a contract furnish the rule by which the rights of the contracting parties should be determined; but in administering the rule the aid of a jury is sometimes necessary, and if they lean too strongly toward the workman and against the employer the remedy is a motion for a new trial. While the verdict stands it must be regarded as conclusive of the questions of fact unless it was rendered under instructions that were erroneous.

The questions raised by the assignments of error are arranged by the appellant in three groups which we will briefly consider.

First. “ The court ought to have withdrawn the case from the jury under the provisions of the contracts.”

This would have been so but for the te timony on the part of the plaintiffs tending to show the presence and directions of the engineer while the work was progressing, and the acceptance of the plant as a whole by the officers of the water company. This testimony was in the case. It could not properly have been excluded. The jury had heard it, had seen the witnesses on the stand, and had seen and heard the witnesses by whom it was denied. The questions of credibility and the weight of the testimony were for them to determine. If in deciding it they have allowed their prejudices or their sympathies to creep into one side of the scales we have no means for correcting their verdict.

Second. “ The instructions given to the jury ought to have been binding.” This is but another mode of stating the proposition just considered. To have withdrawn the case from the jury would have required a binding instruction ; and to have given a binding instruction would have withdrawn the case, as to the subject covered by the instruction, from the control of the jury.

Third. “ The answers to the plaintiffs’ points were erroneous.”

The plaintiffs’ first point asked an instruction that if the jury believe from the evidence that the plaintiffs tried in good faith to construct, and did in fact construct, the entire plant in conformity with the contract and specifications, then under such a finding the plaintiff is entitled to a verdict. This the court affirmed. Upon the finding assumed, the conclusion followed necessarily, and the court could not have held otherwise without error.

The plaintiffs’ second point was drawn upon the assumption that the jury might not find that there had been a complete performance of the contract, and asked the court to say that if they found there had been a substantial compliance, and the repairs and changes subsequently made by the company were not due to defective work on the part of the plaintiffs, then the plaintiffs were not chargeable with the cost of the repairs and changes set up by the defendant. This point was affirmed. We ’See no error in this. If the expenses incurred by the defendant were due to defective plans, or any other cause for which the plaintiffs were not responsible, such expenses could not be charged up to them in ascertaining the amount due them.

The mistakes made upon this trial, if any were made, seem to us to have been those of the jury in finding the facts assumed in the plaintiffs’ points, not by the court in declaring the legal effect of such findings if made.

The judgment is affirmed.