56 Fla. 217 | Fla. | 1908
On the 18th day of July, 1907, the defendants in error, whom we shall term the plaintiffs,
“Blair Burwell, Jr., and Charles. E. Hillyer,. co-partners doing business as Burwell & Hillyer, by their attorneys, Kay, Doggett & Smith, sues Charlotte Harbor & Northern Railway company, a corporation organized and existing under the laws of the State of Florida, for that, on the 1st day of July, A. D. 1907, the defendant was indebted to the plaintiffs in the sum of two thousand dolars for money payable by the defendant to the plaintiffs for goods bargained and sold by the plaintiffs to the defendant.
2nd. And in the like sum. for work done and materials provided by the plaintiffs for the defendant at its request.
3rd. And in the like sum for money lent by the plaintiffs to- the defendant.
4th. And in the like sum for money paid by the plaintiffs for the defendant at its request.
5th. And in the like sum. for money received by the defendant for the use of the plaintiffs.
6th. And in the like sum for money found to be due from the defendant to the plaintiffs on accounts stated between them.'
7th. And in the like sum for interest on divers sums of money due to the plaintiffs by the defendant, forebome to the defendant at its request by 'the plaintiffs before this time.
Wherefore, the plaintiffs bring this their suit, and asks damages in the sum- of two- thousand dollars.
And plaintiffs attach hereto- a Bill, of Particulars of the ¿ccount sued on.
Kay, Doggett & Smith,
Attorneys for the Plaintiffs.
*220 “Jacksonville, Florida, June ioth, 1907.
The Charlotte Harbor and Northern Ry. G>.,
To Burwell and Hillyer, Dr,
To 207 caps 12 in. by 12 in. by 12 ft, 29,808 ft. B. M., replaced at Gasparilla. Sound where taken off by direction of Chief Engineer, act- • ual amount paid by us to J. R. Chambliss for this work, at $7.00 per M........■................ $208 65
To 4 Gasparilla bridge seats, exact cost, to us over and above the $10.00 per M. B. M., allowed us in the estimate, ...............,..$133 00
To 272 drift bolts at 10 cts. each on the 4 Gasparilla bridge seats...... 27 20
$160 20
To 10 per cent profit on the cost of these Gasparilla bridge seats, .... 16 02— 176 22
To 16 caps, 12 in. by 12 in. by 12 ft., 2,304 ft. B. M., replaced1 at Myakka River where taken off by direction of Chief Engineer, actual amount paid by us to J. R. Chambliss for this work, at $7.00 per M.,....... 16 13
To 2 Myakka River Bridge seats, exact cost to us over and above the $10.50 per M. B. M. allowed us on the estimate, '............. 69 00
To 1 to drift bolts at iocts each on those 2 Myakka River bridge seats x i- 00
$ 80 00
To to per cent profit on cost of those Myakka River bridge seats...... 8 00— 88 00
*221 To 4 1-2 tons of coal returned with floating driver which you charged to us at $4.75 per ton.......... 21 37
$5io 37
Jacksonville, Florida, July .rst, 1907.
Charlotte Harbor & Northern Ry.’
To Burwell & Hillyer, Dr.
Statement of bills sent to Charlotte Harbor & Northern Ry. which were passed by Mr. L. ML Fouts, 2nd Vice President and Gen. Mgr. C. H. & N. Ry., and sent to Auditor for payment:
May 1 — 1 bbl of cement taken from first shipment . ............$ 2 75
1 bbl. of cement taken from Myakka by Mr. Spencer, resident engineer........ 2 75
1 bbl. of cement left at Coral Creek for Va. B. & I. Co. . on requpst of Mir. B'ruce, through Mr. Spencer..... 2 75— 8 25
May 1 — 240 drift bolts, 660 lbs. at 3 cents, ..................$19 80
Labor, boring and drifting, at Myakka Draw, 10 bents each side, . .{............ 2 00
Cash to C. Lowe on request of Mr. Spencer, ........... 1 00
14 hrs. towing raft from Cape Hays at 75c..,........... 10 50— 33 30
827 lbs boat spikes at $3.40... 28 12
71 lbs cut washers at 4c. . . . 2 84
353 lbs. drift bolts at 3c....... 10 59
309 lbs machine bolts at 3c. . 9 27
311 lbs. lag" screws, 248
screws, at. 6.4c........... 15 87 — 160 98
$202 53
Jacksonville, Florida, July 1st, 1907.
The Charlotte Harbor & Northern Ry. Co.
T0 Burwell & Hillyer, Dr.
To 112 cubic yards crushed Granite at 2384 lbs. per cu. yard, which equals 133 1-2 tons at $2,7x6,............................$362 58
The defendant pleaded “never indebted as alleged,” and “never promised, as alleged,” and an additional plea admitting indebtedness of $181.19 for lEe following claims named in the declaration, viz:
“1907-
May 9 — 3143 lbs. cast washers at 30.$ 94 29
827 lbs. boat spikes, at $3.40 28 12
71 lbs. cut washers, at 4c. . 2 84
353 lbs. drift bolts at 3c. . 10 59
309 lbs. machine bolts at 3c 9 27
311 lbs. lag" - screws, 248
screws, at 6.4c, ........ 15 87
May 1 — 1 bbl. cement taken from first shipment, .......... 2 75
*223 May x — i bbl. cement taken from Miyakka by Mr. Spencer. 2 75
1 bbl. cement left at Coral Creek for the V. B. & I. Co. on request of Mr. Bruce through Mr. Spencer, ........i.......... 2 75
41-2 tons of coal returned at $4.75 per ton, ...... 21 37
$190 60
Less 200 drift bolts furnished by Connoly mail boat, 225 lbs, at 3 c, April 10, 1907, .............. 6 75
For unloading rock returned from. Myakka to Liverpool, ................... 2 66— 9 41
$181 19
and setting up a tender and offer to. pay that amount in settlement of said claims and demands, which amount was paid into the registry of the court.
On the trial the plaintiff recoveied a verdict for the full amount claimed in the bill of particulars, and a judgment was duly entered for that amount and interest, which judgment is here for review.
It appears that on April 4th, 1906, the plaintiffs entered into a contract, not under seal, with the defendant, then existing under another name containing, among others, the following clauses, under paragraph I:
“First: The contractors agree that they will construct, build, and in every respect complete the trestle bridging for a single track railroad, on the line of the Alifia, Manatee & Gulf Coast Railway Company, in*224 Manatee and DeSoto Counties, State of Florida, from and including the Peace River Bridge near Fort Ogden and Myakka River bridge and the bridge across Gasparilla Sound to Gasparilla Island, and all intermediate openings of not less than fifty feet (50.)
“Second: The contractors hereby agree that they will, at their own expense, cost and charge, find and provide a full and ample supply of the best and most suitable tools and appliances required to< be used in the performance of said work, and will furnish and provide in sufficient numbers all mechanics; laborers and other workmen, also all thing's that may be necessary and requisite for constructing and! completing, within the time herein stipulated, the whole work herein agreed to be done.
Third: The work shall be done in strict conformity with such lines, levels, stakes, profiles, plans, maps, drawing's, specifications and instructions as shall from time to time be given by the company’s engineers as herein provided, for the guidance and direction of the contractors, provided the character or amount of the work is not changed.
Fourth: The work shall be commenced within ten days after the date of this agreement, and the aforesaid bridges across Peace River and Gasparilla Sound shall be completed on or before the first day of October, A. D. 1906, and the bridge across Myakka River and the intermediate bridges shall be completed on or before the first day of December, A. D. 1906.”
The contract under paragraph 2 and first clause contains the prices to. be paid by the defendant for pile driving and “for framing, working, bolting lumber in place complete as per plans and specifications, including all iron, vis: bolts, nuts, washers, spikes, nails, etc..
The the second cluse, paragraph 2, is as follows:
“Second: The said company is to furnish all piling, timber and other material necessary, except the iron above referred to, in raft or on lighters, or on shore at the work, provided, however, when delivering such piling and timber in rafts or on lighters, such delivery at the site along the line where the said bridges are being constructed, will be a fulfillment of the terms of this contract on the part of the company.”
The fourth clause, paragraph 2, provides for monthly and final estimates to be paid on the certificate of the chief engineer.
The fifth clause, paragraph 2, provides that the chief engineer in making final estimates is not to be bound by previous monthly estimates.
The fifth clause of paragraph 3 provides that if work is required not contemplated, the chief engineer of the railroad company shall fix the price by which the parties are to abide.
The sixth clause of paragraph 3 provides that the company shall have the right to malee alterations that may be deemed necessary in the location, line, grade, plan, form or dimensions of the work', then in writing, and how such work shall be paid for.
The seventh clause of paragraph 3 is as follows:
“Seventh: No claim for extra work shall under any circumstances be allowed or considered unless the same shall have been done in pursuance of an order in writing given by the engineer, but nothing shall be deemed or construed as extra work which can be measured and estimated under the terms of this contract.”
Clause 8 under paragraph 3 provides that nothing herein shall be construed into a liability for damages;
The twelfth and thirteenth clauses under paragraph three are as follows:
“Twelfth: All questions, differences or controversies which may arise between the company and the contractor, under or in reference to this arrangement and specification, or its performance or non-performance, or the work to which they relate, or in any way whatever pertaining' to or connected with said work, shall be referred to the chief engineer of the company, and his decision shall be final and conclusive to both parties.
“Thirteenth: Whenever the word engineer or chief engineer is used herein, it shall be understood to. refer to the chief engineer of the Aliña, Manatee & Gulf Coast Railway Company.”
Whether the defendant was legally liable for any part of the amount claimed and recovered, except the item of $362.58 for crushed granite, and the items which are admitted to be due, depends upon whether or not the contract above referred to. controls that liability. It is contended by the plaintiff in error that the amounts claimed as extra for bridge,seat work at Gasparilla Sound and Myakka river are not to be allowed because it was a part of the trestle and bridge work covered by the contract., and already paid for by the defendant, and also that if it is to be regarded as extra, or additional work, it was done without any written order by the chief engineer of the defendant as provided in the contract. The same contention is made by the defendant as to the items for capping, or recapping the piling, and the sundry items
For the plaintiffs it is contended that under the course of dealing between the parties during tire construction of the work provided for in the contract a strict adherence to provisions of the contract requiring that changes, alterations, extra and additional work, etc., should only fix liability on the railway company when ordered in writing by the chief engineer was not adhered to’ and that the defendant waived a strict. observance of these provisions and so acted in the premises as to render itself liable for work and benefits actually received and not paid for. There does not seem to be any dispute that the defendant received the benefit of every 'one of the items charged in the bill of particulars except that for crushed granite, but denies that there has been any waiver by it of the strict requirements of the contract, and contends that except as tp the admitted items, the plaintiff has been paid all that it is liable to pay under the contract. It is furthermore contended that there was.no leg'al proof made of the reasonable value of the work, materials, etc., upon which the verdict was founded.
There does not seem to be any'question about the validity of the provisions of the contract which have been heretofore set forth. Howard v. Pensacola & A. R. Co., 24 Fla. 560, text 606, 5 South. Rep. 356; Finegan & Co. v. L’Engle & Son, 8 Fla. 413, text 424. At the same time it seems to be well settled by high authority that such provisions may be waived by the parties. In the case of Bartlett v. Stanchfield, 148 Mass. 394, 19 N. E. Rep. 549, 2 L. R. A. 625, there was a provision in a building contract “that no charge shall be made for extra work or materials, unless the same is ordered in writing and the price thereof agreed upon,” may be waived by the parties. In the opinion the court says: “The main
We deem it pertinent to say that the evidence of Mr. George S. Bruce, the chief engineer of the defendant, shows that the defendant did not furnish the contractors with lumber and material as they were needed by the contractors, especially in June and July, 1906; that from a letter of his dated July 18, 1906, to the plaintiffs, he thought it not advisable to withdraw the bridge force
Mr. Flillyer testified, among other things, in substance, that the items amounting to $33.-30 were done by the direction of the resident engineer who- told him the company would pay them; that when the trestle was practically completed Mr. Spencer, the resident engineer, directed the contractors to build the bridge seats, and that they were built under his direction, and he practically had charge of the men, and said he would allow pay for them; that they were not embraced in the contract; that Spencer agreed to allow 10c apiece for the
We cannot find, however, in this record any clear proof of the reasonable value of the work and materials used by the contractors in the bridge seat work, or in the recapping of the piles. As to the work for recapping it appears from Mr. Bruce’s testimony that this involved double work, and inferentially that it was rendered necessary by the delay of the company in furnishing .the timber for capping while the piles were being driven. Mr. Hillyer says that he paid the sub-contractor for this work upon estimates furnished by the resident engineer. But he does not say that the resident engineer estimated the reasonable value of the work, and it does not follow, if he did so, that these estimates represented such reasonable value. The same thing is true of the bridge seat work. The plaintiffs, if they recovered at all, were only entitled to recover for the reasonable value of the'work performed, and materials furnished, and as.to this there is no clear proof at all.
As to the item of $362.58 we are constrained to say,, under our view of the law, there is no proof upon which to charge the defendant. The testimony of- Mr. Bur-well shows, in substance, that plaintiffs have some crushed
Section 2518 General Statutes of 1906, is as follows: '“No contract for the sale of any personal property, goods, wares, or merchandise shall be good, unless the buyer shall accept the goods (or part of them) so sold and actually received the same, or give something in earnest to bind' the bargain, or in part payment, or some note or memorandum in writing of the said bargain or contract be made and signed by the parties to- be charged by such contract, or their agents thereunto lawfully authorized.”
Even upon the -theory that the rock in this case was at the time of the proposed sale and thereafter in the possession of the defendant as bailee because it was on premises which the latter controlled, it is absolutely necessary under the circumstances to- a consummated sale that the defendant should have done some act showing an acceptance by it of the rock.
In Benjamin on sales (5th Ed.) 215, where the question of acceptance is treated, the author quotes from Lillywhite v. Devereux, 15 M. & W. 285, as follows: “No doubt can be entertained after the case of Edan v. Dudfield, which was well decided by the Court of Queen’s Bench that this is a question of fact for the jury; and that if it appears that the conduct of a defendant’ in -dealing’ with goods -already in his possession, is wholly inconsistent with the supposition that his former possession continues unchanged, he may properly be said to have accepted and actually received such goods under a contract so as to take the case out of the opera
In the case of Dorsey v. Pike, 3 N. Y. Supp. 730, in discussing what constitutes an acceptance under the statute of frauds, where the property alleged to have been sold was in the possession of the defendant, the court says: “The mere fact that the property was in the possession of the defendant at the time of making the contract furnished no evidence of acceptance in its support (quoting authorities.) But there must be some act or conduct on the part of the buyer in respect to the property, which manifests an intention to accept it pursuant to, or in performance of the contract of sale and purchase which the parties have sought to make; and when the evidence is such as to warrant that conclusion, the question is usually one of fact for the jury.”
In the case of Silkman Lumber Co. v. Hunholz, 132 Wis. 610, 112 N. W. Rep. 1081, it is held:
“Where the subject of a verbal sale agreement of personal property is in the possession of the contemplated vendee as bailee, or to some extent, by reason of its being on his premises by his permission, the mere agreement consisting of an offer to sell on specified terms and acceptance thereof does not work a change of possession, so as to satisfy the statute. To satisfy the statute of frauds in a situation such as last mentioned there must be some affirmative act on the part of the purchaser manifesting an intention to acept the property under the sale agreement, in order to make transition of title from seller to purchaser.”
There are a large number of assignments of error based on the admission in evidence of divers letters from the plaintiffs to the officers of defendant company setting up claims for remuneration for the work, labor, materials, etc., stated in the bill of particulars, and also to the admission of testimony on the part of witnesses of the plaintiffs upon the same matters. The objections are that such evidence was incompetent and irrelevant, and in some instances that it tended to vary the terms of the written contract. Upon the theory that parties to a written contract may subsequently to its execution by parol and' the course of dealing between themselves waive the conditions and vigorous requirements of a written contract we cannot say that any of th.e testimony was entirely irrelevant or incompetent, as it all more or less tended to show the course of dealing between the parties. There are also a large number of assignments based on charges and instructions given by the court, and on instructions refused by the court on the theory that there could not be a waiver of the requirements of the written contract. We have not discovered any serious and reversible error under these assignments.
The only other assignment which we think it necessary to notice is based on the overruling of the motion in arrest of judgment. It seems to be insisted that the bill of particulars was made a part of the declaration, and stated no cause of action because in the bill of particulars certain amounts are stated as having been paid J. R. Chambliss a sub-contractor. The bill of particulars is
There are sixty-four assignments of error presented here, and in addition question presented arising out of the overruling by the court of motions in arrest of judgment and for a new trial. We can not within any reasonable compass treat in detail these assignments, and ■have simply endeavored to discuss those which seemed to present the salient features of the case.
Because we do not think the item for crushed granite has been proven, and because there is no proper proof of the reasonable value of the other items mentioned, the judgment below is reversed and a new trial granted.