126 F. 559 | U.S. Circuit Court for the District of Western Pennsylvania | 1903
This bill is based upon a written contract, dated November 7, 1898, between the above-named parties, whereby the plaintiff, the Altoona Electrical, Engineering & Supply Company, undertook and agreed, at its own expense, to provide all material for, and construct and equip, as provided in the contract, for the defendant, the Kittanning & Ford City Street Railway Company, a line of railroad, to be operated electrically, extending from the Neil-ton plan of lots, in Rayburn township, Armstrong county, through
The main purpose of this bill was to compel the defendant company to deliver to the plaintiff the balance of stock and bonds to which it was entitled under the contract, and to restrain the defendant company, by injunction, from any other disposition of said stock and bonds. The defendant answ'ered the bill on its merits, and did not thereby or otherwise raise any question as to the jurisdiction of the court to entertain the bill. In the defendant’s brief, however, furnished the court since the argument of the case, the jurisdiction of the court to entertain the bill is challenged. Many cases, however, are to be found in the books where courts of chancery have enforced
In respect to the time limit specified in the contract, two observations may be made. In the first place, it seems clear from the dealings of the parties that there was a waiver of the time limit; and, in the second place, the defendant is in no position to insist upon that time limit, because of its own defaults. It was particularly in default in that it never procured the right of way over the Graham property at the northern end of the line, nor over the property already mentioned at the southern end of the line. In regard to the performance of the contract, in so far as it was performed, it must be said that the testimony is very conflicting. Upon a careful consideration, however, of the whole evidence, my conclusion is, and I find, that there was substantial performance by the plaintiff in accordance with the terms of the contract and the specifications for the work, in so far as the defendant company secured a right of way. All the defenses, therefore, based upon the alleged nonperformance or defective performance, are overruled.
Here it may be proper to notice specially the defense relating to the ballasting of the road. The contract provides that the ballasting shall be “with such material as found along line.” The evidence satisfies me that this provision was complied with.
The plaintiff does not claim damages by reason of the failure of the defendant to procure a right of way over the Graham property and the right of way at the Ford City end of the line. The plaintiff, however, does claim that it should be allowed for the profits which it would have made, had those rights of way been procured, and those portions of the line of railway built under the contract. On the other hand, the defendant contends that the plaintiff knew when it commenced work that these rights of way had not been procured, and that it took the risk of the defendant procuring them subsequently. I am unable
As the basis of the account to be now stated between these parties, I take the contract price, namely......................... $95,000 00
From this is first to be deducted the above-mentioned cost for completing the unfinished portions of the railway.............. 8,000 00
$87,000 00
It is conceded that the defendant made partial payments in bonds and stocks, and is also entitled to other credits.
Appended to the answer is a statement (Exhibit A) of credits claimed by the defendant, and amounting to... $37,149 12
These credits, I think, are fairly established by the evidence, except the sum of............................ 24 50
stamps on mortgages, which is manifestly improper. - The defendant is therefore entitled to a credit of.......$37,124 62 37,124 62
$49,875 38
Tne last above amount is the balance due upon the written contract, according to the foregoing findings of the court, to which, however, is to be added interest, the computation of which will be considered hereafter.
The plaintiff claims for extras outside of the written contract. In respect to this whole class of claims, I may say generally that the burden of proof to establish them is upon the plaintiff. No written order for any of these items is produced. As they are 'outside the terms of the written contract, these extras ought not to be allowed unless it clearly appears that they are furnished under an express or implied contract between these parties. The first item under this head is the sum of $1,138.70 for a piece of track 445 feet in length, diverging from the main line, and located on Vine street, in Kittanning. By the terms of the contract the plaintiff was to provide “all necessary turnouts and switches.” By the weight of evidence the conclusion is justified that this construction on Vine street was put in as a turnout, and that this was the understanding of the parties when it was built. This claim is therefore disallowed. The next of
To the balance stated above, namely............................ $49,875 38
Is to be added the cost of the fence on Gault Hill................ 379 53
$50,254 91
The decree, therefore, will be in favor of the plaintiff for the sum of $50,254.91, with interest from May 1, 1900. Let counsel prepare a decree.