M. K. & T. Railway Co. v. Brown

14 Kan. 557 | Kan. | 1875

The opinion of the court was delivered by

Brewer, J.:

This was an action originally commenced by Brown before a justice of the peace, seeking to hold the railway company, for debts created by one W. B. McLeod, under and by virtue of ch. 136 of the laws of 1872. That act is entitled, “An act to protect laborers, mechanics and others in the construction of railroads,” and provides that a railroad company shall take a bond with certain conditions from any person to whom it lets a contract for the construction of its road, or any part of it, or become itself liable to the laborers employed by him. Four principal questions are presented by counsel for the company — first, was the bill of particulars sufficient? second, was there any contact between the company and McLeod for the doing of any work ? third, if there was a contract, was the work contracted for such as is embraced within the terms of the act ? and fourth, were the debts also within its terms ? Of these in their order:

I. Was the bill of particulars sufficient? It must be remembered that pleadings in a justice’s court are not to be subjected to the same strictness of construction as those in the upper courts. Lobenstein v. McGraw, 11 Kas., 645; Kaub v. Mitchell, 12 Kas., 57. So that if the essential facts are stated in such a way that the defendant cannot be misled as to the real claim against him, the bill must be taken as sufficient. Tried by this rule, the bill is plainly sufficient. Indeed, we think it would stand a stricter test. It alleges a contract between the company and McLeod, that the company failed to take any bond; that for work done under that contract McLeod drew certain orders in favor of the laborers upon plaintiff, which he filled, and also gave to one of such laborers a note which plaintiff bought, and gives copies of the orders and note, and alleges that neither the orders nor the note have ever been paid. It is true, the paragraph which alleges the drawing of the orders is a little bungling and confused, (though perhaps that may be due to an error of the copyist,) but the criticism to which it is properly subject is grammatical rather than legal.

II. The evidence of a contract was clear and abundant. E. B. Stevens, who testified that he was in the employ of defendant, and styled “Superintendent of Buildings and Bridges,” was directed by the general manager of the defendant to have certain work done, and made a contract with McLeod to do it. The written memorandum of this contract was in evidence, and is as follows:

“W. B. McLeod agrees to do grading between tracks south of passenger depot, in Parsons, under the direction of the engineer of the M. K. & T. Railway Company, for 21 cents per cubic yard, (one cent per yard overhaul;) the work to be done to the acceptance of engineer, within 30 days.

“W. B. McLeod.

“E. B. Stevens.”

Now while the defendant does not appear upon the face of this agreement as party thereto, yet the testimony of Stevens above given shows that he was simply the agent of the company, and as such agent made the contract with McLeod. Upon such testimony McLeod would have had no difficulty in recovering from the company for the work he did under said contract. It was plainly its contract.

III. The work contracted for was “grading between tracks south of passenger depot, in Parsons.” The extent of the work does not appear, but it was stated by the witness Stevens that side-tracks had been laid on this grade, and that a portion of the main track ran over it. His testimony as to the instructions given him, and in pursuance of which he made the contract with McLeod, was as follows :

“He (the general manager) and I were walking over the ground between the tracks just south of the passenger depot. He said to me, ‘I want you to go and have this ground graded to that cut on the hill, about 100 yards from where the freight depot now stands, and have the cut widened, and haul the dirt up and fill it between the tracks; fill up the hollow places, and round off the ground, so as to give drainage/ ” [And upon cross-examination Stevens further testified as follows:] “The object of the work was, to fill up hollow places between the tracks, to finish and round off the grade in the yard, so as to give better drainage, and to give room for additional side tracks when wanted.”

This was all the testimony tending to show the character of the work. The language of the statute is, “ Whenever any railroad company shall contract with any person for the construction of its road, or any part thereof, such railroad company shall take,” etc. (Laws of 1872, p. 286.) And the contention of counsel is, that the act only applies to the original construction of .the yoad, and not to work done in repairs and improvements — “not in repairing one already built, nor throwing úp an embankment to protect one already built, nor in filling between tracks so as to give drainage to the road-bed, and protect it from being washed by heavy rains.” Now, whatever may be the exact limitations of this act, we think there was sufficient testimony to sustain a finding that the work done was in the construction of a part of defendant’s road. The act does not cease to be applicable when a single track has been completed, but applies whenever the company enlarges its road by the extension of its single track, or the addition of side-tracks. Here was something more than repairs, something more than embankment to protect track, or filling for purposes of drainage. Evidently, additions- to the road were contemplated; side-tracks were to be graded for; a part of the road was to be built; and the act was applicable.

IY. The debts were all originally to laborers, and for work done on this grade. But the present plaintiff was not the original creditor. The note he purchased, and the orders were drawn on him by the contractor. In this way the original creditors, the laborers, have received their pay, and transferred their claims to the plaintiff. But the debts have not been paid by the debtor, the contractor. The language of the act is, “and if such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor.” This responsibility of the company stands in lieu of the bond, and is security for the debt; and when the debt is assigned, it carries the security. We do not understand the expression, “liable to the persons herein mentioned,” as making the security purely personal, and non-assignable, but simply as imposing a direct and original liability, and independent of the amount remaining due by the company to the contractor.

Upon the whole case we think the judgment of the district court must be sustained.

All the Justices concurring.