46 Iowa 339 | Iowa | 1877
The defendants assign forty errors and urge almost all of them upon our attention in argument. The case may be disposed of most conveniently and satisfactorily by determining legal principles applicable thereto and applying them to the objections raised by defendants in groups and classes, so far as they may be treated in that way. In pursuing this course it becomes necessary to determine the precise issues presented by the pleadings and to state briefly the evidence so far as it is necessary to determine the correctness of the District Court’s yulings.
I. The facts that plaintiff delivered the ties for which the suit was brought, and that they were used in the construction
The evidence discloses the following facts, which are not controverted.
1. Plaintiff was a sub-contractor under Barnes, who had a contract for constructing the railroad between certain points. The contract between these parties is set out in the abstract as follows:
“Contract dated May 16th, 1872. Smyth agrees to procure all the cross-ties required by the Burlington & Southwestern Railway Company in the construction of their road between Moulton and Unionville; subject to inspection and acceptance of the chief engineer of said railway company.
“The said Barnes agrees to pay for all such ties so delivered and accepted by said engineer, a certain price, depending on the price paid to Barnes by the M. & M. construction company for the same.
“All ties estimated by said chief engineer in each month shall be paid for on or before the 20th day of the month following.”
2. The contract of Barnes for the construction of the railroad is set out in the abstract in the following language:
“ Barnes agrees to furnish ail the material for and to construct the railroad of the Burlington & Southwestern Railway Company between Moulton and Unionville, and to complete the same, according to siDecifications.
(Then follows list of prices for material, etc., which the company agrees to pay.)
“For track ties 45 cents.
“ Company is to furnish transportation for material to end of the road.
“ The company will always have the right to see that Barnes pays all lawful claims for material and labor entering into the work; and may adjust the same and deduct the amount from money due or to become due Barues.”
After general specifications of various classes of work, there is:
“ Track Ties will be hewn from sound white oak timber, etc. They will be delivered and piled in good.order' on ground selected by the engineer convenient for counting and loading on the cars.
• “ Ties will be finally inspected and accepted or rejected when being distributed on the road-bed in advance of the track. If the contractor accepts the ties from the sub-contractor, it must be at his risk.”
3. Under the lease of the road to Ward, he acquired the right to use in construction and repairs all of the material on hand owned by the company. He undertook to advance a large sum ($750,000) to pay for material to be used in the further construction of the road and to pay indebtedness incurred by the company for construction of the part already completed.
4. The ties, to recover the value whereof this suit is prosecuted, were furnished plaintiff by Banks, who delivered them at a point upon the railroad, where they were piled up ready for transportation upon the cars. The engineers of the railroad company counted, inspected and marked them. This was before the execution of the lease to Ward. Plaintiff brought an action against the railroad .company to enforce his lien as a material man for ties furnished by him under his contract with Barnes and recovered judgment for $26,235. Before judgment was rendered an agreement was entered into between plaintiff and. the railroad company under-which Smyth withdrew a
II. Smyth was a witness in his own behalf, and testified to the delivery of the ties by Banks, and that they were piled up, inspected and marked as above stated. He also testified that the ties in suit were not covered by the judgment in his favor against the company, and that he had not been paid for them, and stated certain facts connected with their delivery by Banks, and the inspection by the engineers of the railroad company.
III. In the course of the cross-examination of plaintiff, defendants offered in evidence the agreement executed between plaintiff and the railroad, under which the ties in question were withdrawn from the suit brought by plaintiff to enforce his lien. The abstract fails to show that the introduction of' this evidence would have been proper upon the cross-examination. We must, therefore, presume that the court below correctly ruled in excluding the evidence. It may be further remarked, that at a subsequent stage of the trial the agreement was introduced in evidence. Defendants thus had the benefit of the evidence, and it was not made to appear that they could have elicited any facts in regard to it upon the cross-examination of plaintiff, which were not subsequently brought out.
It is a well settled rule that customs are subordinate to contracts, and will not control or affect the rights of parties whose contacts contain conditions not in harmony therewith. Under the contract between Barnes and Smyth, the former was liable for all ties accepted by the engineer of the railroad company. Barnes’ contract with the company provides that “ ties will be finally inspected, and accepted or rejected, when
“1. Interrogatory: Who had the custody and control of the ties? * * * * Defendants proposed to prove by this and other witnesses that the railroad ties in question were inspected and accepted by the railway company, and treated and considered as the property of the railway company from the date of their acceptance.” To this evidence there was objection, and the court ruled as follows: “To the question as asked, the objection is sustained. You may show that they were inspected and marked — what was done.”
“2. Interrogatory: From the time of the inspection and marking, whose property were the ties? * * * * Defendants propose to prove that the ties were considered and treated as the property of the railroad company from and after ’their inspection and acceptance, as just stated by the witness.” Upon an objection being made to the evidence, the court said: “Ask if he knows how the railroad company treated them?” “Question: Do you know what was done with the railroad ties, and how the company treated them in respect to the ownership of them, after they were inspected and branded in the manner you have spoken of — any ties on the line of the road? Objected to as incompetent, irrelevant and immaterial, and because the question should be confined to the ties in controversy. Objection sustained to the latter and over
“ 3. Interrogatory: Do you know who had possession and control of those ties? Question objected to as incompetent, etc. Court: Let him state the facts in regard to it.”
“4. Interrogatory: You say you directed your subordinates to use a certain portion of the ties. Now, what indications or facts were in your knowledge that made it right to use those ties for that purpose? Question objected to as incompetent, etc. Sustained. Defendants except.”
The several rulings of the court shown by the foregoing extracts from the record are complained of as erroneous. Their correctness needs no farther vindication than their history and purport as disclosed above. It is apparent that no other restraint was put upon defendants than to forbid the introduction in evidence of the views and opinions of this witness as to the rights of the parties and the legal effect of their acts, which, it is needless to say, was not competent testimony.
The estimates do not show that the ties included therein were used by the company. - As to the ties in question, this cannot be claimed, for long after the estimate was made they were unused, being piled up along the railroad. This fact is not disputed. Now, if the Banks ties were included in the estimates and were not used, and other ties which were not included therein were used, it cannot be claimed that the estimate alone, under these circumstances, would vest the title of the ties in the railroad company. It was proper, therefore, to show that, .while the estimates included the Banks ties, they did not cover others. Defendants’ position, that under this
VIII. An agent of Ward testified that he was informed by the engineer and another officer of the railroad company, and also by Barnes, that the company owned the ties in question. The evidence was clearly hearsay and rightly rejected.
IX. The defendants requested the court to require the jury to answer certain questions as special findings of facts. Two of these required the jury to find whether plaintiff delivered
Three of the questions were substantially the same, as a like number submitted by the court. There was no error in refusing to propound them upon motion of defendants. One question, which required the jury to find whether the railroad company accepted the ties, could have well been given. But the jury evidently found that there was no acceptance of the ties by the company. One of the special findings in response to a question submitted by the court is that the ties when taken by Ward were the property of Smyth. If the jury had found that the company accepted the ties, their answer to this question would have been different. They must have found there was no acceptance of the ties by the railroad company. No other questions were submitted by defendants.
The evidence tended to prove that the ties in question were piled up by Banks for plaintiff along the railroad, and that the engineers of the company examined them and marked them in a manner to indicate that they were of the quality required by the contract. They remained at the place until they were used by Ward after the road passed into his hands. They were included in the estimate of ties furnished by plaintiff" and other ties furnished by him and used by the company in constructing the railroad were not included. It required about 80,000 ties to construct the road between Moulton and Unionville. Plaintiff furnished about 101,000, which were covered by the estimates. The ties in suit were not included in the judgment recovered by plaintiff against the company, being withdrawn therefrom by agreement, of the parties. Plaintiff assented to this arrangement for the reason that he was informed by the engineer that the ties were not included in the estimate.
The company became liable for all ties received by it in excess of the number required to complete the road as specified in the contract. The assent of the parties to the application of the contract to such ties will be presumed; but the
If the ties in question, though piled up as directed in the contract, were not finally inspected and accepted by the railroad company they did not become its property. If they were included in the estimates of the engineer and other ties which were accepted and used were not included, and by the agreement of the parties the ties in suit were excepted from the final settlement, it cannot be claimed that such estimate would have the effect to transfer the property to the railroad company. The whole case turns upon the acceptance of the ties under the contract. If they were accepted they became the-property of the railroad company, if not they remained' the-property of plaintiff. We have indicated above circumstances, under which acceptance would or would not be found or presumed. A few additional thoughts on this subject are required.
If the ties were inspected and approved by the engineers and estimates made therefor, and a subsequent arrangement made between the parties under which they were excluded from the settlement and not included in the judgment, but other ties were made to take their place, they became, under such arrangement, the property of plaintiff. This results from the-fact- that plaintiff furnished ties in excess of the quantity contemplated by the contract. Such excess, as we have seen, would be brought within the contract by the assent of the parties, either express or presumed. The arrangement we have just mentioned shows that the ties in dispute were excluded from the operation of the contract.
XI. The instructions given the jury, which are brought in question, are based upon rules of law above recognized or are in harmony therewith. If any well founded objection can be urged against them it is their extreme prolixity. They-cover more than eleven printed pages of compact type and are numbered by scores. But defendants ought not to be heard to complain of this fault. Eight pages of instructions, including the modifications thereof adopted by the court, were asked in defendants’ behalf. While it may well be' doubted that the jury were aided by all of the instructions or even
XII. It is insisted that the court erred in submitting to the jury the questions which they were required to answer by special findings. They involved matters of inquiry pertinent to the rights of the parties, as settled under the doctrines we have above announced. We think they were properly submitted to the jury — certainly no prejudice was wrought thereby. No further points demand our attention.
Affirmed.