68 W. Va. 223 | W. Va. | 1910
Lead Opinion
In the circuit court of Cabell county, J. E. Sims recovered a judgment, against Carpenter, Frazier & .Co., for $2,600.00, in an action of assumpsit, brought to recover money alleged to be due from the defendants, principal contractors with’the Chesapeake & Ohio Eailway Company, to the plaintiff, a sub-contractor. Assigning a number of errors, the defendants obtained a writ of error.
The evidence having disclosed that E. P. Sims, a brother of the plaintiff, had become interested in the contract after it was made, the defendants moved to dismiss the action on the1 ground of a variance or non-joinder of necessary parties. The theory of the motion is not clearly stated, but it is immaterial. The subject matter of the contract was grading on certain sections of new roadbed, constructed by the C. & O. Eailway Co., in making certain alterations in its line between St. Albans and Barboursville. This work consisted of both excavation and filling. The contract was taken in the name of J. E. Sims. After it had been obtained and the use of a steam shovel became necessary, E. P. Sims aided his brother in the purchase of one with the understanding that' he should have a share of the profits to arise from certain portions of the work. We think the motion to dismiss was properly overruled. In actions at' law, founded upon contracts, the only necessary parties plaintiff are those who have the legal title or right involved. Clarkson v. Doddridge, 14 Grat. 42, 44; Crawford v. McDaniel, 1 Rob. 448; 4 Min. Ins. Part I, p. 450; 15 Enc. Pl. and Pr. 484. There are some statutory exceptions to this rule, but this case does not fall within any of them. The interest of E. P. Sims arose out of a contract between him and T. E. Sims, not between him and the defendants. Direct interest in the subject matter always gives standing in equity, but the rule in actions at law is narrower. There, the interest must be legal and direct, not merely equitable or indirect, unless some statute confers the remedy at law.
The principal matters in controversy consist of two items, one of which amounts to $515.97. Had Sims completed the work he agreed to do, there would be no controversy about this.
The estimated amount of earth to be taken out of the cut known as the “river change” was 35,000 or 36,000 cubic yards. The final estimate, made by the railway company’s engineer after the completion of that work, and ' based upon actual measurements, shows 30,575 cubic yards. The plaintiff claims he removed 39,152 cubic yards. This claim is based upon a survey and estimate, made more than two years, after the completion of the work and after the river had been turned through' the cut, by an engineer employed by him. The theory of the defendants is that, assuming the measurements and calculations made by this engineer to have shown the quantity claimed, a large portion of the excavation had been made by the river after the cessation of work by Sims. It is also denied that the measurements and calculations are founded upon correct data. Shipe, the engineer, testified that the depth of that cut on the north side, as he took it for the purposes of his calculation, ranged from 16 to 21 feet. The defendant claims the depth of the cut on that side, as originally made, ran from 12 feet at one point to nothing or practically nothing. It seems not to be controverted that this cut was made in a hillside along the line of the new' roadbed of the railroad, sloping from the south
From what has been said, it is obvious that the power of the court to -disturb the verdict depends upon the conclusions respecting two questions: First, whether Sims agreed to be bound
Carpenter says he told Sims, at the time of the making of the contract, that he did not have a copy of the specifications and that Sims said it made no difference, since he was familiar with all railroad specifications and they were about the same. He says he told him he was to do the 'work under the instructions of the railroad engineers and their plans; and ’ that he would be paid as the railway company paid the defendants, and explained that the estimates did not come punctually or regularly. He further says "I agreed to pay him just what the C. & 0. engineers allowed us for it, and he was to take their measurements finally;” and also “I was to furnish statements each month. * * * * I agreed to Mr. Sims to furnish it to him and I did furnish it to him.” Carpenter further says “All the contract I made with him, he was to do the work according to the plans and specifications of the Chesapeake & Ohio Railway Company’s engineer”, and further that “the contract was that he was to do the work for so much money and to do it according to the instructions and the plans and specifications given him by the engineer.” Sims says he worked by the stakes set by the engineers and by their direction; that he was to be paid ninety per cent, on or about the 20th or 25th of the month for the work done the previous month; that the railway company’s engineers figured it and turned it into the general contractor and the general contractor gave it to the sub-contractor, in accordance with the custom on railroad work everywhere; that he did not agree to take his compensation, when the rail
The work was commenced in May, 1906. Estimates were made monthly by the railway engineers from that time until it ceased, June 30, 1907. By these estimates, both Sims and the defendants were governed in their accounts relating to the amount of work done. The whole amount of work done and materials furnished by Sims amounted, according to the engineer’s estimate, to $50,319.39. The work on the river change was practically all done as early as October 30, when about 30,000 yards was included in the estimate on account of that work. That number' of. yards appeared in the estimate for November and December. In January, it was increased to 30,575. Sims, in the meantime, 'was working on other contracts he had with the defendants and the whole amount estimated to have been done by him up until the last of January, 1907, was $28,780.25, February $33,910.25, March $40,120.25, April $44,-022.25, May $48,100.25. A statement, rendered to Sims by the defendant on the 16th day of August, 1907, shows all of the work estimated prior to May 1st exeejrt $609.46 had been paid. Then the May and June estimates were added. It thus appears that nearly $44,000.00 of the entire $50,000.00 had been paid, from time to time, upon the estimates made and furnished by the railway company’s engineers. These estimates were rendered to the defendants and they rendered statements to Sims, based upon them. Neither the defendants nor Sims ever had any estimate made on their own account for any purpose, during the progress of the work, so far as the record discloses. Sims says he agreed to do the work under the directions of the company’s engineers and did do so. While not admitting that he agreed to be bound by the estimates of the engineers, and denying that he was to receive his compensation only as the estimates were made, it seems that lie did nevertheless accept the estimates, settle in accordance with them and receive his pay as they were furnished. It is altogether improbable that he received compensation before statements were rendered him, and the defendants rendered no statements until after the estimates had been received. More than half of the work had been done before any objection was made by him to any of the estimates. The first documentary evidence of
We think the facts and circumstances disclosed leave no room for doubt that Sims agreed to be bound by the estimates of the railway engineers. He recognized and settled by them so far as any settlements were made, from May, 1906, until February, 1907. At least he acquiesced in them. He made no estimates himself, although within that period he had done over $25,000.00 worth of work. Hpon whose estimate 'was he relying, if not those of the railway, engineers? Carpenter says he agreed to be bound by them. He denies this, but his actions speak louder than his words. He accepted them and called for nothing else, never questioned them for a period of seven months, and made no measurements nor estimates himself nor caused any to be made. Denying he was to be bound by the railway estimates, he fails to say what agreement he did make, concerning this vital matter. Is it probable that this was left unprovided for? Here is conceded conduct on his part, the tendency of which is to contradict his own statement as to the terms of the verbal contract and corroborate and confirm the statements of Carpenter. This is a circumstance of great weight which the jury could not exclude simply because of contradiction in oral testimony as to the terms of the contract. It is an undisputed fact bearing directly upon the question. To this we must add another consideration. The subject matter of the contract and the relation of all the parties to it were well known to both. Sims knew the defendants were contractors and could not reasonably or justly afford to pay for more yardage than they received pay for from the railway company. He knew the objects and purposes of the contract on the part of the defendants as well as he knew its objects and purposes on his own part. It is altogether improbable and absurd that either of these parties intended or thought he was making a contract, binding the contractor to pay the sub-contractor for more yardage than would be allowed by the builder to the contractor. Hpon this question the following observations of Judge Brannon, in Johnson v. Burns, 39 W. Va. 658, 671, are forcibly applicable: “Now, add to this the facts that the timber was
This conclusion brings the case within a well settled rule as to the item claimed on account of the river change. In Baltimore & Ohio R. R. Co. v. Polly, Woods & Co., 14 Grat. 447, it was held that a provision in a 'working contract between a railroád company and a construction company, making the final estimate of the railroad company’s engineer conclusive upon the parties as to the amount and character of the work done, was valid, binding and controlling, unless vitiated by fraud or gross misconduct. The same principle was asserted by this Court in McConnel v. Hughes, 50 W. Va. 41. See also Baltimore & Ohio R. R. Co. v. McCulloch, 12 Grat. 595, and Mills v. Norfolk & Western Ry. Co., 90 Va. 523. Here a final estimate was made at the end of the month of June, 1907, and communicated to the defendants by the railway company and by them to Sims, and there is no evidence of fraud or misconduct on the part of the engineer.
This conclusion 'would set aside the verdict, but there is another aspect of the case in which the controlling force and effect of established facts would accomplish the same purpose. Sims did not cause any survey and estimate to be made until after the river had run through this excavation for about two years, producing an altered condition. It does not appear that Shipe had ever seen the ground in its natural condition. He admits.that his estimate is based upon a depth of the cut on
As to the item of $515.97, called "retained percentage”, the finding must depend upon whether or not the defendants released Sims from further performance of his contract. They do not say he agreed to be bound by the provision of the contract between them and the railway company, authorizing the latter to suspend work. This contingency seems not to have been discussed by the parties nor provided for in their agreement. The evidence fails to show any provision on the subject. The defendants gave Sims notice of the order to suspend and he did so. He claims they ordered him to stop and thereby justified his abandonment of the incomplete work, and also that they consented to such abandonment and released him from any further obligation. They deny this and say they agreed to complete the work for him and on his account, in case he should prefer not to return and finish it. _We think this makes a case for jury determination and the finding in respect to it cannot be disturbed. It depends wholly upon the credibility of the witnesses.
There was another item of about $500.00 for ties, poles and timbers, left on the ground by Sims, on leaving, and a portion of a trestle, erected for the purposes of a fill, all afterwards used by the defendants. As to the quantities of timber, its value and whether it was used by the defendants, there was a good deal of conflicting evidence. The jury allowed the plaintiff $200.00 on account of this item, but he released that portion of the verdict. We find no fault with the instructions and rulings, applicable to it. As to whether the finding was sustained by the evidence, we are not called upon to say, since it 'was released.
Defendants’ peremptory instruction to find for them was properly refused, as were also their instructions to disregard
Plaintiff’s instruction No. 1, embodying, in apt terms, his theory of release from liability in respect to the unfinished work; his instruction No. 2, relating to his claim for timber, used by the defendant, and framed in language, unobjectionable, so far as we can see; and his instruction No. 3, respecting yardage in the river change cut, were all properly given. That the verdict, founded on the last one, cannot stand, is immaterial. There was evidence tending to support the demand and that sufficies. State v. Clifford, 59 W. Va. 1 (syl. pt. 14).
Defendant’s special interrogatory No. 1, pertaining to the amount of the retained percentage, was properly refused, there being no controversy as to the amount! Their interrogatory No. 2, asking the jury to define the interest of E. P. Sims, was properly refused, since he was no party to the contract involved, nor to the action. Their interrogatories Nos. 5 and C, relating to the same matter, were properly refused. Their interrogatories Nos. 7 and 8, calling for findings as to whether Sims had completed his work when he left, were properly refused, incompleteness of the work having been admitted, and the controversy being whether the defendants had released him. These interrogatories would have been misleading and the answers thereto immaterial.
The interrogatories propounded at the instance of the plaintiff, requiring findings as to whether the defendants used the plaintiff’s timber and the value thereof and whether he quit work by their direction, were obviously proper, in view of principles and conclusions already 'stated.
The exclusion of two jurors, as being disqualified by reason of employment by the C. & 0. Eailway Company, was not ground for reversal, if erroneous. Thompson v. Douglas, 35 W. Va. 337. We perceive no reason for an inquiry as to the correctness of the ruling, since it may not be repeated on a new trial.
The charge, made in argument, and unsupported by evidence,
For the reasons stated, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and Remanded.
Dissenting Opinion
(dissenting):
I agree to the law announced in the syllabus, but I cannot consent that points 2 and 3 are properly applicable to the facts in this ease. The evidence is extremely conflicting on every material fact in the case, so much so that I am unable to see how the court can say that the verdict is against the evidence, or that it is plainly wrong. In fact, I think, the verdict is right. Tlie principal matter of contention was concerning the amount of yardage in the work known as the “river change.” Davis, the railroad engineer, testified that he measured this excavation shortly after the work was completed, and found it to contain 30,575 cubic yards. But his testimony 'was based on recollection of what he had done two years before, and he doesn’t remember what width was given, in his calculations, to the bottom of the cut, whether'seventy feet or less. lie also says that he made an estimate of the quantity to be excavated before any work was done on it, and that it was 35,000 or 36.000 yards. ^The yardage could bo as accurately ascertained, before, as after the work was completed, provided the work was done according to the original specifications. Sims testifies that he did this work according to the original specifications; and that
The contract between the parties was oral, and there is great conflict in the testimony as to its provisions. Defendants claim that plaintiff agreed to be bound by the measurements made by the railroad company’s engineer; this is denied by Sims. I do not think the fact that Sims received partial payments, as the work progressed, according to measurements furnished monthly, is entitled to any weight whatever in determining the question of the actual amount of the excavation made. He had the unquestionable right to payment for the yardage which he removed under the contract. Mr. Sims says these monthly estimates were furnished to him'by Mr. Carpenter’s bookkeeper, and that he does not know whether they were made by the railroad company’s engineer or not, but he thinks they were made by defendant’s bookkeeper. Even if Sims had agreed that the measurements of the railroad company’s engineer should be final and binding, still this would not preclude him from showing that there was either fraud or gross error in his measurements or calculations; a shortage of nearly 9,000 cubic yards, nearly twenty-three per centum, is sufficient to show that there ivas gross error.
If there ever -was a case wherein the verdict of a jury is entitled to stand, for the reason that it rests upon conflicting-testimony of witnesses, I think this is such a case. I am clearly of the opinion that the judgment of the lower court should have been affirmed. I am opposed to overturning verdicts which arc supported by evidence concerning the weight and value of which, under the established rules of law, juries are made the sole judges. I not only can not see that the verdict is plainly wrong, but I can go even further and say from the record, that, if I had been a juror trying the case, I 'would, very probably, have found the same verdict.