42 N.J. Eq. 467 | New York Court of Chancery | 1887
The bill was filed against Patrick O’Reilly (he has since died), and the object was to stay proceedings in an attachment suit brought in Camden circuit court by O’Reilly against the complainant, and to get an account of certain transactions and dealings between the complainant and him. One of those transactions is in reference to a locomotive engine, called the Sea Gull, which the complainant says he purchased for O’Reilly and at his request and with his money, and at the like request took the title thereto in his, the complainant’s name, and leased the engine to the Camden and Atlantic Railroad Company. The complainant
As to the claim in connection with the locomotive engine Sea Gull, the complainant claims, as before stated, that the engine, which it is admitted was bought by O’Reilly to be used upon the road of the Camden and Atlantic Railroad Company (the company was in embarrassed circumstances), of which road the complainant was superintendent, and in which O’Reilly was interested, was leased by him in his own name, but as O’Reilly’s agent, to the Camden and Atlantic Railroad Company. To recover arrears of rent, he took legal proceedings, at some expense for counsel fees &c. He received from the company, in a settlement and composition, satisfaction for his expenditures, and took some of its preferred stock for the money due for the unpaid rent. He claims that he made the settlement with O’Reilly’s consent and by his authority, while the defendant, on the other hand, insists that O’Reilly let the engine to the complainant, and that the latter, and not the company, was responsible to him for the rent. As already stated, the complainant alleges that he bought the engine at O’Reilly’s request, and by his direction and for him, and with his money, and at O’Reilly’s request took the engine in his (the-complainant’s) name. The answer denies that the complainant bought the engine or took title to it. But it states that he urged O’Reilly to buy it and let it to the company, which O’Reilly refused to do, and that then the complainant requested O’Reilly to buy an engine for use upon the road and let it to him, to which proposition O’Reilly acceded and bought the engine-accordingly and let it to the complainant. In an account rendered to O’Reilly, by the complainant, of money placed in the complainant’s hands for a special purpose, as stated in the bill, the complainant charges O’Reilly with $22.35 for expenses incurred in July, 1855, in furnishing the engine, and with expenses ($65.74) paid in September, 1857, consequent upon moving it, and he credits O’Reilly, under date of December 27th, 1855, with $104 for “ surplus of purchase-money of SeaGull engine in July, 1855.” O’Reilly did not object to those-
' To consider the claim in reference to “ GreenwoodThe bill states that in or about October, 1855, O’Reilly, who had purchased a tract of land of about thirteen hundred acres, in Pennsylvania, called Greenwood, said to the defendant that the timber upon the land would be of great advantage to him, O’Reilly, for furnishing railroad ties for the Lebanon Valley Railroad, for the construction of about forty miles of which he had, as before stated, a contract; that the ties would in value be more than sufficient to pay the purchase-money of the property, and that in view of his numerous obligations for kindness to the complainant he would let him have an interest of one-half in the tract if he would take charge of the property, and assist him in obtaining ties therefrom and in sending them to the railroad. It further states that the complainant agreed to this, and accordingly rendered the service, and made expenditures contemplated by the agreement, but that O’Reilly did not convey the promised interest in the land to him, nor any interest whatever, but sold the property to another person. The answer denies that such was the agreement, and alleges that in fact the agreement was for a partnership between the complainant and O’Reilly — the former to pay half of the purchase-money of the property, which he subsequently refused to do. What the agreement really was does not appear. O’Reilly died in 1881. He filed his answer in 1864. The bill was filed in January, 1861. From the time of filing the answer to his death, a period of seventeen years, no step was taken in the cause. O’Reilly was dead when the complainant gave his testimony in the suit; the complainant is therefore not competent to testify to any transaction with or statement by O’Reilly. P. L. of 1880 p. 5% ; Lanning v. Lanning,
The transaction in regard to the Bowen farm was as follows: In 1857 O’Reilly and the complainant proposed to assist Bowen in the purchase of the farm by advancing him money to aid him in the payment of the purchase-money, $4,800. The complainant paid $1,300 in cash, and he and O’Reilly endorsed Bowen’s notes for $1,500. For the rest ($2,000) of the price Bowen gave a first mortgage to Bean, the vendor, upon the property. To secure the $2,800 to the complainant and O’Reilly, Bowen conveyed the property to them by deed dated December 8th, 1856, and they executed and delivered to him a defeasance, dated April 1st, 1857, declaring that the conveyance was made to secure the payment of that money. Afterwards they reconveyed the farm to him, and he mortgaged it to the complainant alone, to secure the $2,800. The complainant paid the notes, and the property was sold. After applying the proceeds of the sale, there remained a deficiency of $1,114.50. The complainant claims that there is due to him from O’Reilly’s estate, upon this Bowen matter, over $1,773. The bill saj^s nothing of this claim. The sale appears to have taken place in the spring of 1868. From that time to the death of O’Reilly, in January, 1881, was a period of about thirteen years. It was not until the death of O’Reilly that this matter was introduced into the case, and then it was brought in, not by the pleadings, but by the evidence. Net to speak of the bar of the statute of limitations, it would be unjust to the estate of O’Reilly to require an account upon this claim under the circumstances. The complainant might have set it up by supplemental bill, but he did not see fit to do so. Common justice, no less than the demands of correct practice, required him to set up his claim in that way, and so notify the defendant that he intended to hold him liable thereon. He, having made no claim in any way in respect of that' matter for more
The complainant proves, and the defendant does not deny, that the former did extra work, arid furnished extra materials under the before-mentioned subcontract for railroad construction, and did work, and found materials outside of the contract, among other things, obtaining what are called “wood leaves” (the right to cut down, and remove, and use standing timber) for O’Reilly, and hauled ties for him to the railroad, and distributed them there, and did other work for O’Reilly. There should be an account between the parties as to all those matters. No particular directions are necessary in reference to them.
The claim which the complainant makes upon the estate of O’Reilly for damages sustained by him in the destruction of his horses, wagons, harness &c. by (as it is alleged) his own workmen, in a riot, in what is known as a “ strike ” by them for the immediate payment of their wages, or for an increase of pay instead thereof, cannot be allowed. The work was suspended about the 1st of October, 1854. In the latter part of the winter, or early in the spring following, the complainant’s workmen being idle, Mr. Bowen, who was the complainant’s cashier and book-keeper, and, during his absence, his general manager, spoke to Mr. O’Reilly upbn the subject, saying that it would be a good thing if they could be set at work. To which O’Reilly replied that they would probably be willing to go to work under an agreement to wait for their pay until the 15th of May. Bowen acted upon the suggestion, and the men went to work under that agreement. On the 1st of May they demanded their pay (although it was not yet due according to their agreement), or an increase of wages. The complainant could not pay them, and refused to increase their wages. They then “turned out upon a strike,” as it is termed, and, during the strike, the complainant’s property, for which his claim is made, was destroyed by fire. There is obviously no ground upon which this claim can be supported. Eor can the claim of the complainant to damages for suspension of the work be sustained. The work was suspended (but only partially, however) by order of the
It remains to consider the claim of the complainant to compensation for the removal of solid rock. The contract provides that the complainant shall receive, for the excavation of solid rock requiring blasting or sledging, sixty-five cents per cubic yard. It also provides that stratified rock requiring sledging or blasting shall be paid for as solid rock. 'When the contract was taken the company represented that the rock to be excavated in the sections mentioned in the complainant’s contract was limestone. It proved to be, in fact, as represented, in its general character, but in one or two of the sections there was found an intervening stratum of trap rock, exceedingly hard, not stratified, with hidden fissures and openings through it, and which it was very difficult and expensive to blast, and which could not .be broken by sledging. 'When broken, it broke up into small fragments, unfit for bridge building, and of no use except in making embankments.
There appear to have been in some places large masses of white flint, through which it was almost impossible to drill for blasting. The engineer of the company testifies that it was stated to the contractors, for their information and guidance in making their bids, that the rock was the ordinary magnesian limestone, easily drilled, and affording good building stone which the contractors could use in the erection of their structures, bridges and culverts &c. He says that when cut into for the purposes of excavation, a large part of it was found to be trap rock, in which
“ Hrnvever, I trust to be enabled to carry you through without sustaining any loss. Prom my experience in rock excavation I know that the rock on*477 some of your sections cannot be excavated for less than eighty to eighty-five cents per cubic yard. I will make good the deficiency (loss), $9,156, as per statement.”
'When that letter was written, the complainant had refused to proceed with the work until a satisfactory arrangement as to price should have been made. In a letter of November 7th, 1855, to O’Reilly, he said that he could not consent that the matter should be longer deferred, and that he would thank O’Reilly to give him an answer before the 15th of the month.
It is clear from the testimony that he refused to proceed with the work, unless he should receive a satisfactory assurance as to increased and remunerative pay for so doing, and that O’Reilly was anxious that he should go on with the work, and, in order to induce him to do so, promised that he should receive such pay. It appears that in December, 1856, O’Reilly received from the company $20,000 in its promissory notes, to re-imbursfe him for his loss on his contract, by reason of his extra payments to his subcontractors in respect to the solid rock, of which sum he then paid $8,000 to the complainant on account of his extra compensation. In November, 1859, O’Reilly brought suit against the Philadelphia and Reading Railroad Company, into which the Lebanon Valley Railroad Company had been merged, to recover further compensation upon the same account; and in December, 1861, he tried to bring about a compromise of the suit, and to that end applied to Richard B. Osborne, who .was chief-engineer of the new company, as he had been of the old, to assist him therein. From the testimony of Mr. Osborne, it appears that in March, 1857, O’Reilly was constrained to raise the complainant’s compensation for excavating hard clay from twenty-two cents per cubic yard, the contract price, to twenty-three and a half cents, but that this was not sufficient to enable the complainant to pay expenses upon the work, and that the work would therefore have stopped, unless the chief-engineer (himself) would supply the funds necessary to keep it going, relying for his protection, in so doing, upon the promise of O’Reilly, and the application of the latter to the company for an extra allowance on account of the rock. O’Reilly then got a
It appears by the release given by him upon the settlement, that as part of the consideration of the payment of that sum, he was to relinquish to the company his claim to one thousand shares of the capital stock of the Lebanon Valley Railroad Company, .and, if necessary, transfer the stock to the Philadelphia and Reading Railroad Company. It would seem, from the facts above stated, to be quite clear that the claim to extra compensation for the rock excavation done by the complainant, not only entered into the settlement, but formed a very considerable part ■of the consideration for which the $38,000 were paid. My conclusion in this matter, however, is not based upon the assumption that O’Reilly did in fact receive such allowance of extra compensation from the railroad company, but upon his promise to pay the complainant such additional compensation for excavating the rock as would protect him from loss. It is urged by
“I have concluded that I am not doing myself justice, with the prospect before me of high wages, high feed and the increased cost of powder, to go on further without some understanding from you. The least price that will enable me to prosecute the work to completion, will be an average of twenty cents per yard. For less than this I would not undertake it.”
The complainant thus refused to go on unless he should receive eighty-five cents instead of sixty-five cents, the contract price. O’Reilly did not insist upon the performance of the contract as to the rock, but on the other hand, acknowledged the justice of the complaint, and induced the complainant to proceed with the work by promising to give him all of the price (seventy-three cents per cubic yard) which he himself was to receive for the work, and at the same time saying that from his experience in rock excavation, he knew that the rock in some of the sections could not be excavated for less than eighty to eighty-five cents per cubic yard, and promising to indemnify him. Bowen testifies that O’Reilly was notified of the hardness of the rock and of the inability of
The defendant’s counsel insists that if the new agreement was binding and the complainant was entitled to compensation beyond that which was stipulated for in the contract, the claim should, under the provisions of the contract, have been passed upon by the chief-engineer, and that, inasmuch as the complainant did not present the claim for allowance to the chief-engineer, he cannot maintain any action or suit for it. But the provision to which he refers has reference to questions as to the quantity or quality of work' to be paid for under the contract, and the amount of compensation at the rates provided for in the contract and to questions relative to the execution of the contract. The question whether the complainant is entitled to an extra allowance or price beyond that provided for by the contract, does not arise under the contract and is not a question relative to the execution of the contract within the meaning of the provision under consideration. The provision, therefore, is not applicable to it. The complainant is entitled to an account
As to the defendant’s claim to an account in reference to the money received by the complainant as agent and superintendent for O’Reilly. If there be doubt, under the evidence, as to whether the settlement which was made between the parties was not made under a mistake; or, to state it differently, if it be doubtful, upon the case as it appears at the hearing, whether the account stated does not contain a mistake, the party who impeaches it is entitled to a review of the matter by way of an accounting in respect to it. It is admitted that the complainant charged O’Reilly twice in the same account (which is in two parts) with the sum of $2,346.79 ; once (in the first part) with $2,000 for salary and $346.79 for expenses, and again (in the second part) with $2,346.79, in one item, as “ salary and expenses included in the above account,” referring to the former two charges of $2,346.79. The explanation given of this double charge and the excuse for it are that a credit of $3,753.06, in the second part of the account, includes $2,346.79 credited in the first part in two items, one of $501.48, which embraced, it is alleged, $113.48 of the amount, and the other of $2,233.31, and that therefore it was necessary to charge the $2,346.79 twice to correct the error. That there was no fraud or attempt to deceive is manifest from the circumstance that the second charge states that it is for what had already been charged in the first part of the account. But the charge for salary is for salary from August 7th, 1853, to April 7th, 1854, and the credit of $3,753.06 is under date of March 24th, 1854 — a period prior to the time when the term of service for which the salary was claimed expired. It may be that the salary was in part credited in advance. But the charge for expenses in the first part of the account is' under date of August 7th, 1854, and is for expenses incurred from August, 1853, to August, 1854. As before stated, the credit of $3,753.06 is under the previous date of March 24th, 1854. It is urged on behalf of the complainant that Bowen, who made up the account, was O’Reilly’s clerk, and not the complainant’s, and that O’Reilly acquiesced in the statement of
The defendant is entitled to a further investigation of the matter, to establish, if she can, the alleged mistake.