Chandler v. De Graff

22 Minn. 471 | Minn. | 1876

Cornell, J.

If, at the time of the settlement between plaintiff and defendants, Moorhead, as construction agent, etc., had no right of property in the ties in controversy, nor any interest or lien thereon, under the contracts between him and the defendants, such as prevented the defendants from giving, and plaintiff from acquiring, an absolute title thereto under their agreement of settlement, it is difficult to see why the terms of such settlement are not conclusive upon plaintiff’s right of recovery in this action; for if, under such settlement, the plaintiff in fact became fully reinvested with the absolute title to the ties, thereby obtaining the full benefit of the settlement according to its terms, and all the advantages which he expected to derive from it, then the fact that defendants received larger estimates and payments than they were honestly entitled to, by reason of these ties having been inspected and made the basis in part of such estimates and payments, in no way affected any of plaintiff’s rights under his settlement.

All the rights, if any, which Moorhead or the railroad company had in these ties were such as were secured to them under the contracts between Moorhead and the defendants. By these contracts defendants undertook fully to construct and complete certain designated lines of railroad, in the manner and within the times therein provided, and to furnish the requisite materials therefor, excepting such as it was expressly agreed should be furnished by the railroad company. Of the materials so agreed to be furnished by defendants were the ties necessary to be used in the construction of the road, the number of which to each mile ivas expressly stipulated and fixed at 2,500. The character of the work and quality of the materials were subject to the inspection and approval of the chief engineer of the company, whose duty it was, also, to make monthly estimates of the amount of work done and materials furnished, upon which the company were to make monthly payments, retaining 10 per cent, thereof as a guaranty for full performance by defendants. The compensation which defendants were to receive was fixed, under two of the contracts, at a certaiu sum for each mile of constructed road, and, under the other, at such sum as the different kinds of work done and materials furnished would amount to, at the agreed prices stipulated in the contract. The contract as to the Brainerd Branch contained a provision that, upon the completion of each and every thirty consecutive miles, to the satisfaction of the company or its engineer, the same should be inspected and accepted as completed; and both the other contracts contained a like provision, requiring such inspection and acceptance upon the completion of every forty-mile section. Upon full completion of the roads, and performance on the part of defendants, and the certificate of the chief engineer to that effect, the full compensation agreed upon was to be paid.

These contracts can only be treated as contracts for work and materials, and not of sale. The thing contemplated by each was a completed single-track railroad, to be constructed by defendants out of materials contributed in part by each party to the contract. This was what defendants undertook to do, and what the other party contracted for and promised compensation. The idea of a sale of ties, as such, or any of the other materials which defendants might find it necessary to furnish, in the performance of their contracts, cannot be gathered from any of their provisions. They were furnished, not on account of any agreement for the purchase or sale of ties, but in part execution of defendants’ promise to build and complete a certain line of railroad, and of such a quality, and to such an extent only, as might be necessary to fulfil that specific obligation and complete that undertaking. The risk of loss was clearly defendants’ until the road was inspected and accepted as provided in the contracts. If, on full completion, a surplus of ties had remained, which had not been used in the construction of the road, the railroad company could not have been compelled to receive them and pay for them, even though they might have been included in prior monthly estimates of materials furnished, upon which advance payments had been made.

No title nor property in the ties vested in the railroad company until after they had been actually placed in the track. Neither had the company nor Moorhead any lien thereon on account of advance payments, because it had not been provided for in the agreements, and there is no law authorizing a lien under such circumstances. Andrews v. Durant, 11 N. Y. 35 ; Tompkins v. Dudley, 25 N. Y. 272; Adams v. Nichols, 19 Pick. 275 ; School District v. Dauchy, 25 Conn. 530. The plaintiff, therefore, under his settlement with defendants, became fully reinvested with the absolute ownership of the disputed ties, free from any claim or lien on the part of Moorhead or the railroad company. That defendants had been paid estimates based, in part, on the ties, in no way affected plaintiff’s rights under the settlement, nor did it give him any right to go behind it or disregard its terms.

Hence the verdict is clearly against the evidence, the . whole of which is before us, and whether this result was caused by an erroneous instruction of the court, or by a misappi’ehension of its reasoning on the part of the jury, is a matter of no practical importance, and need not be considered. The verdict must be set aside, and a new trial granted.

Order reversed.