108 Va. 490 | Va. | 1908
delivered the opinion of the court.
The bill in this case was filed by the appellees to enforce payment of a mechanic’s lien, alleged to be due them as sub-contractors for work done in constructing' a section of the Black Mountain Bailroad.
It appears that the Keokee Coal and Coke Company, as general contractors, entered into a contract with the Black Mountain Bailroad Company to build for the latter a railroad, several miles in length, between Imboden, in Wise county, and Keokee, in Lee county. The Keokee Coal and Coke Company sub-let its entire undertaking, by contract in writing, to the firm of Johnston & Grommett Brothers, the appellants, who in turn, by parol contract, sub-let a part of the work to the appellees, Bunn & Monteiro. The evidence shows that under this parol contract the appellees were to be governed by the written contract which had ben entered into by the appellants with the Keokee Coal and Coke Company.
The Black Mountain Bailroad Company, the Keokee Coal and Coke Company, and Johnston & Grommett Brothers were made parties defendant to the bill, which alleged that complain
Upon the bill, the answers, which deny its allegations, and the evidence in the cause, the decree appealed from was rendered, giving a personal judgment for $2,203.21, subject to a credit of $522.15 and costs of suit, against the appellants, Johnston & Grommett Bros., with the right to issue execution thereon. The decree then refers the cause to a commissioner to ascertain whether the Black Mountain Railroad Company and the Keokee Coal and Coke Company, are liable to the complainants by reason of the filing of their mechanic’s lien, and, if so, in what amount.
We are of opinion that the position taken by appellants, that the court was without jurisdiction to enter the judgment com- / plained of, is not tenable. The appellants contend, that the only ground for equitable jurisdiction in this case is that the complainants have a mechanic’s lien to be enforced; and that the record fails to show that there is any such indebtedness on
The right of Bunn & Monteiro, the appellees, to recover from the appellants, with whom they contracted, does not depend upon the right of the former to a mechanic’s lien. If the fact was properly established by the record, that the appellants were indebted to the appellees, a personal decree against the appellants for such indebtedness could be rendered, although the right to a mechanic’s lien had not then been established. This was a bona fide proceeding in equity to enforce the mechanic’s lien alleged in favor of the appellees. It may turn out when the evidence is taken that the complainants in the bill are not entitled to a lien upon the section of the railroad bed in question; but if it appears that the complainants are entitled to recover from the appellants, the court can proceed to give judgment in their favor for the amount due, although they may have failed to establish their right to a lien; it being well settled that, when a court of equity has once acquired jurisdiction of a cause upon equitable grounds, it may go on to a complete adjudication, even to the extent of establishing legal rights and granting legal remedies which would otherwise be beyond the scope of its authority. Walters v. Bank, 76 Va. 12; Penn v. Ingles, 82 Va. 65; Beecher v. Lewis, 84 Va. 632, 6 S. E. 367; Grubb v. Starkey, 90 Va. 834, 20 S. E. 784.
We are, however, further of opinion that it was, as contended, premature to enter the personal decree complained of, in favor of the appellees against the appellants.
The evidence shows that during the progress of the work the monthly estimates were made and the appellees paid in accordance therewith, but it clearly appears that no final estimate upon the work done by the appellees has ever been made by the chief engineer. Indeed, it is insisted that the work undertaken by the appellees has not been completed. Kor does it appear that appellees have ever mentioned to the chief engineer their claim that the work was completed, or requested of him a certificate in writing showing a final estimate and the balance, if any, due to them. The basis of the personal decree against the appellants is admitted to be a final estimate upon the work done by appellees, made by engineers who were strangers to the transaction, and employed for the purpose by appellees without the knowledge or consent of the appellants. The evidence shows that in the nature of things these outside engineers could not make an accurate or reliable estimate showing the balance due
A sufficient answer, however, to this proceeding by appellees is that it violates the express terms of the contract by which they agreed to abide. That contract provides that the engineer in charge of the work shall certify in writing its final completion, together with a final estimate showing the balance due. It' was error to ignore, without cause, this final arbiter agreed upon-in the contract and adopt the uncertain and arbitrary standard of measurements and estimates furnished by strangers employed by one of the parties to the contract without the consent of the other. There is not shown to have been in this case any unnecessary or unreasonable delay by the engineer in charge in making estimates; nor does there appear to have been any other ground for the course pursued by appellees in employing other engineers to perform the duties they had agreed should he discharged by the chief engineer of the Black Mountain Railroad Company. If the conduct of the engineer designated by the contract was fraudulent, or he was guilty of a mistake so gross as to amount to a fraud on the rights of the opposing party, the latter would not be hound by such estimates, hut could maintain their action on the contract to recover the amount due them. N. & W. Ry. Co. v. Mills & Fairfax, 91 Va. 613, 22 S. E. 556. No such condition, however, appears in this record. On the contrary, the appellees have obtained a decree based upon final estimates made, without apparent cause therefor, by strangers to their contract, and in violation of its express terms.
We are of opinion that the order of reference made in the cause should he enlarged, so as to require the commissioner, in addition to the other inquiries directed, to ascertain and report whether the appellees had completed their work in accordance with the terms of their contract, and, if so, what balance, if any, was due them from the appellants.
Reversed.