23 F. 214 | U.S. Circuit Court for the District of Western Pennsylvania | 1885
The established rule in equity is that a corporation is accountable for benefits which it has received under an ultfa vires transaction. Green’s Brice, Ultra Vires, 717. Hence, in holding that the defendant’s compensation for the materials furnished and work done by him should be measured by what it would have cost the plaintiff company to employ a responsible contractor to provide the same materials and perform the same work, the master, I think, adopted a just standard. While the defendant is not under any guise to receive damages for the loss of his bargain, yet he is not to be put off with a bare reimbursement of his actual outlay. He is entitled to be paid for what he has done fair rates, such as any other railroad
I cannot say that the master erred in adopting, in the main, the estimate of Charles E. Fink, as to the values of the materials furnished and work done. The master had the advantage of seeing ajtd hearing the witnesses, and every presumption is to he made in favor of the correctness of his conclusions upon questions of fact. Besides, compared with the estimates of the other witnesses, it is not evident that Mr. Pink’s values are excessive. In so far as the exceptions allege mistakes committed by the master in respect to the quantities of materials furnished and amount of work done, they do not seem to me to be well founded. The plaintiff’s fifth and sixth exceptions go to the allowance to the defendant of the value of that part of the work done by Weaver (a subcontractor under Heed) before the date of the defendant’s contract, instead of what the defendant actually paid therefor. The fact is that the defendant took the Weaver contract off Heed’s hands, and paid for all the work done by Weaver. Hence the master was of opinion that the defendant is entitled to receive the value of the whole of that work. Now, even if this view is a questionable one, still, it seems to me that there is another ground for sustaining the master in this particular. He was not furnished with any evidence whereby he could distinguish between the work done by Weaver before the date of the defendant’s contract, and that done by him afterwards. lie was therefore obliged to treat the work as a whole, under tlie proofs as submitted to him.
In fixing the value of the materials for the unfinished bridge, I am not convinced that the master has erred. But it is not so clear to me that Mr. Youtz may not have a claim thereon. The transaction was not a sale by him of bridge materials, but a contract whereby ho undertook, to build a bridgfe, furnishing the materials. Now, in the performance of the contract lie has been interfered with; and it may he that his title to the unused materials was not extinguished. Hence the defendant should he required either to deliver to the plaintiff an acquittance from Mr. Youtz, or give security to indemnify the plaintiff from any claim he may have on account of said materials. This, however, can be provided for in the final decree.
Notwithstanding the few changes made by the master, the result shows that substantially lie adopted Mr. Fink’s estimate, the details of which appear in the defendant’s Exhibit A. Now, in view of the friendly relation existing between the two, it is a reasonable conclusion that Mr. Pink’s estimate does the defendant full justice. Beyond question that estimate includes a general contractor’s profit. Indeed, the doubt in my mind is whether the profit thus allowed is not too liberal. In some particulars it strikes me as extreme. For example, Weaver was paid for earth excavation 23 cents, and for loose
For the reasons stated by the master, the item of $556.69, for engineering expenses, is, I think, a proper charge against the railway company.
Finally, I am of opinion that the plaintiff company is justly chargeable with interest on the ampunt found to be due to the defendant when the work was stopped. Green’s Brice, Ultra Vires, 728. No equitable reason appears for denying interest. It is not shown or pretended that the company ever made a tender of money to the defendant, or set apart or kept on hand a fund to pay him. The result, then, reached by the court, after a very careful consideration of the case, is that the only exception to be sustained is the one relating to the allowance of 10 per centum upon the master’s estimate.
And now, March 9, 1885, all the exceptions to the master’s report are overruled, save the twenty-fourth exception filed by the plaintiff,, which is sustained.