107 F. 338 | U.S. Circuit Court for the District of Vermont | 1901
This bill is brought upon a contract in .writing for building the Rutland-Canadian Railroad at prices by quantities of work done, including, “Rubblestone embankment, per cubic yard, 40” cents, to be paid for on estimates of the chief engineer of the construction company, performance by which was guarantied in writing by the Rutland Railroad Company. All these corporations, with some of their officers alleged, to have taken part, are made defendants; and the bill alleges that one of these officers, to induce the plaintiffs to enter into the contract, orally agreed in behalf of himself and the railroad companies to pay five cents additional per cubic yard of rubble embankment. The bill further alleges
No head of equity jurisdiction appears to be better or more firmly settled than that over mistakes or frauds in arbitrators. In Story’s Equity Jurisprudence, chapter 39 is devoted to it. Herrick v. Belknap’s Estate, 27 Vt. 673, was in equity in respect to such a contract as this, and the jurisdiction was well maintained in an opinion by Chief Justice Redfield. At law' the award might be conclusive as to the conduct of the arbitrator, and noncompliance with the requirement of submission to the arbitrator might be a defense, however inequitable it might be. That case is ample authority for, and a good example of, such a bill as this, as to the principal parties to the contract. The construction company is alleged to be a myth representing the Rutland-Canadian Railroad Company, which is sought to be followed. Tf these allegations are true, the latter company may be liable, and both are proper parties. In the case cited, Belknap made the contract, but his estate and the railroad company were both made defendants, and an account was taken of the amount of work done. Here, if the estimates of the engineer are set aside as fraudulent or mistaken, an account of the work done by the plaintiff's is necessary; and, if the requirement of submission to the chief engineer is superseded or obviated, an account of damages for terminating the work may be proper. The Rutland Railroad Company is said to appear to have been released from its guaranty by the extensions of time shown by the bill, without allegations of any assent thereto. But the extension would not release the guarantor from liability for what had been done before the extension, however it might be as to what was done afterwards. And the liability on the agreement for the five cents per cubic yard of rubble embankment is said to be purely at law, if anywhere. But this liability, if any, is for the same number of cubic yards of such embankment as the principal parties to the main contract may be liable for; and, if an accounting is necessary as to them, it is as to all, to ascertain the number of such yards. The making of the guarantors and these promisors parties to. the bill for such an accounting does not produce multifariousness.
The motion of the defendant Harding, who does not reside in this district, is not opposed, and the bill is therefore dismissed as to him, but without prejudice and without costs. Demurrers overruled; defendants to answer over by April rule day. Bill dismissed as to Harding without prejudice and without costs.