St. Joseph Iron Co. v. H. K. Halverson & Co.

48 Mo. App. 383 | Mo. Ct. App. | 1892

Ellison, J.

Plaintiff having recovered a judgment against Lowe & McFall, who were railroad contractors, summoned defendants as garnishees of said Lowe &. McFall. It appears that Shepard, Winston & Co. were the original contractors to construct a portion of a line of railway, and that they sublet to defendants, who, in turn, sublet a portion of their contract to Lowe & McFall. The indebtedness thus arising and due from defendants to Lowe & McFall being the matter now in dispute, the only items of this dispute being two, found under the.head of “remarks” on the margin of “an estimate.”

Defendants answered interrogatories denying that they were indebted to Lowe & McFall. To this answer there was filed the following reply: “Comes now the plaintiff in the above cause, and, for reply to the defendants’ answer filed he¡ ein, denies each and every allegation in said answer contained. The plaintiff, for further reply to said answer, alleges and charges that at the time the defendants were summoned as garnishees in this cause they were and are now indebted to Lowe & McFall in the sum of $1,911.69, for work done and labor heretofore done by said Lowe & McFall as subcontractors under the said H. K. Halverson & Co., who were contractors for constructing a portion of the Chicago, St. Paul & Kansas City railroad. Whereupon plaintiff asks judgment against the said H. K. Halverson & Co. for the sum of $1,017.92, the amount due plaintiff by the said Lowe & McFall, together with the interest thereon and costs.” Plaintiff recovered, and defendants appeal.

On trial of the issues, the contract between defendants and Lowe & McFall was introduced. It contained much specification and detail as to the work, measurements, price, etc. Among other provisions was the following: “It is further mutually agreed and exjjressly understood, that the decision of said chief engineer on any point or matter touching this agreement shall be final and conclusive between the parties hereto, and each and every one of said parties hereby waives any and all right of action, suit or suits, or other remedy, in law or otherwise, under this contract, or arising out of the same. And the said first party, in consideration of the fulfillment and performance of all the stipulations contained in this contract by Said second party, to be by said party fulfilled and performed, and whenever said work shall have been, in the opinion of the chief engineer, completely finished in every respect, and perfonned agreeably to the .various stipulations and specifications of this agreement, and said chief engineer shall have furnished to said first party a certificate of the fact under his hand, together with his estimate of the quantity of the various kinds of work done by said second party under this agreement, which estimate shall be final and conclusive between the parties hereto, will pay to said second party, their heirs, legal representatives or assigns, within thirty days after said certificates and estimates shall have been furnished by said chief engineer, the sum which may be due under this contract, agreeably to said estimate, at the following rat°s and prices ”—

I. The only indebtedness to Lowe & McFall which can exist in this case must be such as arises under this contract, and such contract governing the relation between the defendants and Lowe & McFall most, of course, determine plaintiff’s rights against defendants as garnishees of Lowe & McFall. An estimate was made by the engineer as contemplated by the contract; and, as under the contract this estimate made by the engineer was to be final and conclusive,' it is binding on these plaintiffs, and they should not have been permitted, as they were, to themselves give an estimate of “about” what the work amounted to and about what was owing them. We held in Roy v. Boteler, 40 Mo. App. 213, that, where the contract provided for an estimate of the work and certificate thereto by a party therein named, such estimate and certificate must be made as stipulated.

The original counsel for plaintiff has died since filing a brief in this cause, and counsel now in charge of plaintiff ’ s case state, in a supplemental brief, that the reply to defendants’ answer to the interrogatories is, in effect, a petition in quantum meruit, and not on the contract. But the brief by the original counsel puts the case, not on the contract it is true, but on “ indebitatus assumpsit to recover the stipulated price due on a special contract,” such contract having been fully performed. Mansur v. Botts, 80 Mo. 651. And in such case the performance of the contract and compliance therewith must be shown. In other words, the terms of the contract govern as fully as if the action was directly on the contract. And so the trial court treated it, as is shown by the instructions and other proceedings.

II. In our opinion it was not proper to receive the testimony of witness Bright as to what one Rodgers told him about what defendants would owe Lowe & McFall. In tlie first place, as the case stands, such indebtedness can only be shown by the engineer’s certificate, and in the next place Rodgers was not shown to be an agent of the character to bind plaintiffs by his declarations as to their indebtedness. The fact that he paid time checks for them, and was in charge of their “business place” in Savannah without something more in detail to explain his relation to them, is not deemed sufficient to make him an agent with authority to bind by his admissions the defendants as to what they owed on their contract for constructing a railroad. We are not able to ascertain from the record, with any degree of certainty, that Rodgers was in a position to even know what defendants would owe on their contracts, much less to bind them by communicating such knowledge (if he had any) to others. The testimony cited by counsel as showing Rodgers’ agency, for the purjioses here intended, is not sufficient for the purpose.

III. But there appears to be an insurmountable objection to plaintiff’s case. We have seen that the contract governs these parties, and by reference to that portion of the contract above quoted it will be seen that it contains a stipulation- that there is nothing owing to Lowe & McFall, at least, nothing due and payable to them until thirty days after there shall have been previously made by the chief engineer of the Chicago, St. Paul & Kansas City Railway Company a certificate that the work had been “completely finished in every respect” according to the various stipulations of the contract, as well as such engineer’s certificate to an estimate as to the quantity and kind of work, and that that “ estimate shall be final and conclusive between the parties.” Now, in this case no such certificates or estimate from the chief engineer wras shown, the case was, therefore, not made out, and defendant’s demurrer to testimony should have been, sustained.

There was in evidence, however, an estimate made and signed by a “division engineer” and a “resident engineer,” and if we should consider either of these as the “chief engineer” spoken of in the contract (which the testimony shows they are not), it would not aid plaintiff’s case; for there is yet lacking a certificate that the work had been completely “finished iñ- every respect” as required by the contract. But, furthermore, the contract provides “that the decision of said chief •engineer on any point or matter touching this agreement shall be final and conclusive between the parties hereto.” So, if we should consider either the resident or division engineers, who were witnesses, as the “chief engineer” spoken of, we find them each deciding the only points made or questions raised on the estimates against the plaintiffs. Our views as to this case can be better appreciated or understood by looking at it as though the action had been brought by Lowe & McFall against defendants “on common counts” for the stipulated price due on a contract fully executed and performed. It will, then, be clearly seen that there is an attempt to recover the stipulated price under a special contract without showing compliance with conditions which are precedent in absence of fraud to anything being due on the contract.

Our conclusion is that the judgment should be reversed and cause remanded.

All concur.