63 Minn. 258 | Minn. | 1895
In the summer of 1892 defendant was engaged in the construction of. what is known as the “Red Lake Falls Branch” of its railroad. One Fogleberg had a contract to grade a certain portion of the roadbed, but had defaulted in performance. Plaintiff had just finished a similar contract of another part of the roadbed, and had on hand the tools and appliances for that kind of work. Thereupon an agreement was made between him and defendant under which he proceeded to do the work contracted for as aforesaid by Fogleberg. Plaintiff brought this action to recover a balance . claimed to be due him under that contract. The case was tried by the court below, without a jury, and judgment ordered for plaintiff for the sum of $416.80. From the judgment entered thereon, defendant appeals.
It is admitted by both parties that, by the terms of the agreement between them, plaintiff was to be allowed all sums expended in doing the work, and 10 per cent, of these sums for his compensation for superintending the work, and, in addition thereto, $20 per day for the use of his track, and $14.40 per day for the use of his dump cars. It appears from the evidence that, during the progress of the work, plaintiff presented his itemized reports to defendant on this basis, and was paid for all of the same. Thus, the pay rolls and other expenses for September amounted to $3,651.68, after which appears the item: “To 10 per cent, on above, for supervision and use of tools, $365.17.” Following this is a charge of $1,121.97 for use of cars and track. This was all paid. The pay rolls and other expenses for October amounted to $7,655.42. Following this is the item: “Add 10 per cent., suptce. and use of tools, $765.54.” Then follows an item of $894.40 for use of cars and track. This bill is receipted by plaintiff. The pay rolls and other expenses for November amount to $2,527.37. Following this is the item, “Add 10 per cent., suptc. and use of tools, $252.73,” to which is added $550.40, for use of cars and track. This bill was also receipted by
We are of the opinion that the terms of the original contract betwteen the parties will not bear any such construction, and that, if the subsequent contract which plaintiff elaims was made will bear this construction, it is, under our statute, not enforceable.
Plaintiff testified that he made Ms original contract with Col. Crooks, defendant’s chief engineer. Said the witness: “I think the price was mentioned, but afterwards it was reduced to writing, what I should get. There was a memorandum made between me and him by Col. Crooks, in his handwriting. * * * It was made, — that memorandum that is in writing was made shortly after we commenced work; right after I started the work. Q. Mr. Swank, I call your attention to plaintiff’s Exhibit D, and ask you if that is the memorandum which you say was made, and embodied substantially your understanding. A. Yes, sir; that is the paper, sir.” Exhibit D was then offered and received in evidence, and defendant admitted that Col. Crooks had authority on behalf of defendant to make, and did make, the contract therein contained. Exhibit D is an unsigned memorandum, which reads as follows:
“Allow Mr. Swank the amount of pay rolls, the amount deducted for expenses and costs of powder and fuse, and ten per cent, of the same, added for use of tools and superintending work; also twenty dollars per day for use of track; fourteen dollars and forty cents per day for use of cars.”
As to such subsequent contract, plaintiff testified: “Q. What conversation did you have with Colonel Crooks, during the progress of the work, with reference to that particular work? A. I had after-.
Whether or not the original contract bound plaintiff himself to advance all this money in the first instance we need not consider. Neither need we consider whether the 10 per cent, referred to in the subsequent contract is the-same 10 per cent, agreed to be paid by the first contract, or whether it is an additional 10 per cent.; in other words, whether the subsequent contract is in fact a new contract at all, or anything more than a mere assertion by Col. Crooks-, to plaintiff of the amount of his compensation under the original contract. But conceding that it is not, and is in fact a subsequent agreement, by which plaintiff is promised an additional 10 per cent, for the use for a few weeks of his money so paid out, we are of the opinion that it cannot, in any event, be enforced beyond the rate of 7 per cent, per annum. G-. S. 1894, § 2212, provides “that interest
The judgment is reversed, and a new trial granted.