27 Minn. 485 | Minn. | 1881
Action to recover possession of certain personal property, consisting of lumber and stone prepared for the construction of a bridge over the Minnesota river at Belle Plaine.
It appears from the evidence that under two acts of the legislature, passed in 1879, providing for the construction of the bridge, the commissioners appointed for the purpose, of whom there were five, proceeded to make a contract with plaintiff to furnish the material for and construct the substructure of the bridge. The contract was in writing, and was signed by plaintiff and three of the commissioners — the other two refusing to sign it. It refers to designs, plans and specifications for the work, prepared by the engineer who was to have charge of the work, to which plans, etc., the contract, when executed, was, as stated in the contract, to be attached and form a part of it, and thereupon to be deposited' in the custody of the clerk of the commission. It provided for paying plaintiff for constructing the substructure the sum of $8,875, “in manner following; that is- to say, an estimate of the amount of work and the value thereof, proportionate to the whole, is to be made by said engineer on the first day of each month from and after the commencement of the work, and during the progress thereof, and until the completion thereof,” and upon said estimate the said commissioners were to pay the amount thereof, either in the bonds of the borough of Belle Plaine, or in current money. Among the specifications which were attached to the contract when it was offered in evidence, was one which, in terms, provide4
Under the contract, plaintiff commenced work on the bridge substructure sometime in June, 1879, and continued to about August 5th. No estimate was made by the engineer on July 1st, and, so far as the evidence shows, very little had been done up to that time. August 1st, an estimate, which included the property in controversy, was made, amounting to $1,507.43. August 5th, the commissioners delivered to plaintiff $1,500 in the bonds of the borough of Belle Plaine, and he thereupon served on them a notice of his intention not to do anything further towards fulfilling his contract, and also another notice specifying the grounds on which he refused to proceed. None of these grounds appear from the evidence to have been well founded, and some of them were, under the circumstances, frivolous; the whole being suggestive of a desire to escape from the obligations of his contract, rather than an honest intention to lay before the commissioners any complaint of their acts that he might have supposed he had. Afterwards, a corrected or final estimate was made of the work and material, amounting to $1,523.78. The commissioners paid him the balance of $23.78. The plaintiff continuing his refusal to go on with the work, the commissioners declared his contract forfeited, took possession of the material included in the final estimate, let the contract to finish the work to defendants Farrell & Smith, and turned the material over to them.
What was meant in the specification by the terms “first party” and “second party” was a question of law for the court to decide. No serious question could be made, taking them with their context, that “first party” meant plaintiff, and “second party” the commissioners. And though the court ought not to have left it io the jury to decide, yet, as their decision of it was clearly such as the court ought to have made, no harm resulted from leaving it to them.
The questions put by plaintiff to the witness Webb as a cross-examination, and excluded on defendants’ objection, were not properly cross-examination, but related to new matter. Evidence offered by plaintiff that the plan of the centre or turn-table pier was improper, and that two of the commissioners, who did not sign the contract, claimed that for that reason it was invalid, was clearly inadmissible. The execution of the contract by three of the five commissioners was a valid execution on the-part of the commissioners; and the claim is absurd that he could abandon the contract because
Of the exceptions taken to the charge of the court, the only-part intelligible is to the propositions that there was evidence from which the jury might find that plaintiff had waived any ■default of the commissioners in regard to estimates and payments, and also from which they might find that the payment ■of $23.78 was in full, instead of only on account. It seems to have been claimed at the trial that the evidence showed that the commissioners were in default in not causing an estimate to be made of the small amount which had been done prior to July 1st, and in the delay of five days in paying the ■estimate for July.
Under the contract plaintiff had a right to insist on an estimate July 1st and another August 1st, and payment of each, ■either in bonds or currency, within a reasonable time thereafter. A refusal by the commissioners to comply with the ■contract on their part would have justified him in abandoning it. But he made no demand for an estimate on July 1st, and continued on with the work, saying nothing about the ■estimate. This was certainly evidence that he wáived that ■estimate. He made no demand for an estimate on August 1st, nor for the payment of it. He made no complaint of any ■omission or any delay until he assumed to abandon the contract. The contract contemplated that after an estimate the ■commissioners should have time and opportunity to procure ■the issuance of bonds to pay it. They were entitled to a reasonable time to do this. There is no evidence, nor is it suggested, that the time taken from the 1st to the 5th was unreasonable. As to that estimate no default on their part ■appears. So far as there was any default to be waived, the ■court-below was right in assuming there was evidence of a waiver. There was also evidence that the $23.78.was paid •and received in full for all- plaintiff had done and furnished
There is no question of forfeiture in the case. The plaintiff furnished the material under his contract, was paid for it pursuant to his contract, and according to his contract, he having without just cause refused to proceed with it, the right to the material and to retain it vested in the commissioners.
Orders affirmed.