52 Minn. 551 | Minn. | 1893
This was an action to foreclose a lien against the line-of railway owned by defendant company, under the provisions of 1878 G. S. ch. 90. Defendant Evans had contracted with the company to. construct about ninety miles of road, and plaintiff was -his subcontractor under two contracts; one dated the 16th, the other the 28th, day of July, 1887. Other subcontractors were made defendants. On findings of fact the court below ordered judgment in favor of defendant, company, and this appeal is from a judgment entered upon an order-refusing a new trial. Thirty-four assignments of error are presented by counsel for appellant, but in their brief and on the oral argument they discussed what they termed the “three main points,” all having reference to the first contract, and plaintiff’s right to a lien by. virtue of work done under it. There was not much dispute over the-facts. It appears that Evans was to be paid in the bonds of defendant company at the rate of '$7,000 per mile on the completion of each consecutive five miles of the line. These bonds were on deposit in New York city, and were to be delivered to Evans only upon the certificate of the president and chief engineer of the company that he had completed the number of consecutive miles before mentioned. The contracts for different portions of the line made between Evans and plaintiff were alike in their terms. In each was a stipulation that plaintiff should commence his work within ten days from date, and should prosecute the same with such force and. means as would, in the opinion of the chief or assistant engineer, insure the completion thereof by September 15th following. At all
It is unnecessary for us to pass on appellant’s contention that time was not made of the. essence of the contracts. From what we have said in reference to the language found in these instruments it would appear to be a matter of grave doubt. The engineer was empowered with very great authority in the matter of pushing or retarding the work, having almost unlimited control over the plaintiff, when and how he should work, and the number of men he should employ. We are unable to discover any provision in the written agreements whereby the plaintiff positively promised to complete the work by September 15th. He did expressly contract to prosecute it with such force and means as would, in the opinion of the engineer, insure its completion by that day; and it was also provided that if he failed or neglected to use such force and means, after being notified in writing, as would, in the opinion of either Evans or the engineer, complete it on the day named, the former could declare the contracts abandoned, plaintiff forfeiting all that was his due. With these and other provisions in reference to the power and authority of Evans and the engineer to control the work, hastening or delaying it as they chose, it would seem somewhat unreasonable to declare that the sentence found elsewhere in the contracts and before quoted should be construed as requiring the full completion of
On the testimony as presented by the record the fact that plaintiff did not complete his contracts by September 15th should not have been allowed to stand in the way of the enforcement of his lien claim.
The second main point argued by counsel for appellant relates to the findings that the estimates and certificates by the terms of each contract required to be furnished to Evans as a condition precedent to payment by him were not so furnished by either plaintiff or the chief engineer, which finding, it is insisted, was not sustained by the evidence. This point is so interwoven with the third, which bears upon^ certain rulings of the court made when receiving testimony, that they may well be considered together. The evidence which was received shows very clearly that Evans was only upon the ground in person two or three times. He seems to have been a resident of Chicago. The general manager, the engineers, and the attorney of the road had offices in the same building, in Sauk Center, for some months, and while plaintiff was doing his work. One Wilson came to Sauk Center, opened an office in the same building, kept a clerk, and pretended to represent the contractor, Evans. He was over the line of work with Evans, once at least, and with other persons, such, as the manager and the engineers. He looked after the construction of the road to some extent. He was beyond doubt recognized as the representative of Evans by all of the functionaries of the road, and while Evans was in Sauk Center he made his headquarters at the-office occupied by Wilson. There was no direct evidence that he-was Evans’ agent, but the circumstances all pointed that way very strongly. Eor instance, on one occasion, when Evans had made a-trip over the line, and had reached Sauk Center, with the intention, of returning to Chicago immediately, the question arose between the engineer and himself, as to who should sign certain bridging contracts, about to be entered into, in Evans’ absence. The latter informed the engineer that Wilson would attend to it, and the contracts were signed for him by Wilson. To this man Wilson, and in his
But a new trial must be had, as the court erred in some of its rulings when excluding certain testimony, and again in striking out portions of that .already in, which was proper and competent as tending to show that Wilson was Evans’ agent. We need not refer to these erroneous rulings ■ specifically, but will call attention to well-recognized rules of evidence in like cases, under which a part of the testimony excluded, and some, at least, of that stricken out, should have been received or retained. We have stated the general course of Wilson’s conduct, and what he did at Sauk Center for a period of three or four months, while plaintiff and other subcontractors under Evans were at work on the line. That he pretended to act for Evans, and that on one occasion at least, and in a matter of fact way, Evans recognized him as his representative, is certain. That Evans paid him occasional visits, and once took him over a part of the work with him, and that he was recognized by the pfficers of the road and by the subcontractors as Evans’ agent, was well established; and that his course of conduct must have been known by the latter seems beyond serious question. From the natural improbabilities that without authority Wilson would assume to act in the capacity that he did during nearly all of the time the work was being done, and from the fact that such conduct would naturally come to be known by the assumed principal, the fact of agency may be presumed. Neibles v. Minneapolis & St. L. Ry. Co., 37 Minn. 151, (33 N. W. Rep. 332.) It was well said in Reynolds v. Collins, 78 Ala. 91, that “as a general rule the fact of agency cannot be established by proof of the acts of the professed agent in the absence of evidence tending to show the principal’s knowledge of such acts, or assent to them; yet when the acts are of such a character and so continued as to justify a reasonable inference that the principal had knowledge of them, and would not have permitted them if unauthorized, the acts themselves are competent evidence of agency.” In view of these rules it is obvious that the court erred in many of its rulings, particularly when it struck out the testimony of plaintiff as to Wilson’s
Very little discussion is needed in respect to the second cause of action, and as to what occurred on the trial concerning it, or the findings of the court. It was not within the province of the chief engineer to release plaintiff from a performance of his agreement to do the work covered by the second contract. If Evans was in default, the plaintiff could safely refuse to proceed, but the engineer was nowhere given the authority to absolve the plaintiff from his stipulation to perform, and hence his attempt so to do was a nullity.
It stands admitted on the testimony that plaintiff sublet much of the work stipulated for in this second contract, contrary to an express provision therein. Under proper allegations in its answer the defendant company could take advantage of a breach of this condition, but with such allegations the defense might not prove of very great value, for the law before referred to as applicable to defendants’ claim that plaintiff ought not to recover on his first cause of action because he failed to complete his contract in time would be pertinent and applicable here, if warranted by the facts.
Judgment reversed.
(Opinion published 54 N. W. Rep. 743.)