84 Vt. 302 | Vt. | 1911
The plaintiffs are contractors, and as such, on July 2, 1906, contracted with the defendant for the labor, materials, and construction of a concrete masonry dam and steel penstock for the improvement of the defendant’s electric light and power plant, as per a written agreement of that date, signed by both parties, which, and the specifications thereto attached under which the work was to be undertaken and performed, with certain exceptions, are set out in haec verba in the declaration. The only exception important to be noticed here is the one providing that the work should be performed according to the plans and drawings of such an engineer, which plans and drawings are made a part of the contract.
The action is assumpsit to recover the balance due from the defendant for the performance of said contract, and for certain extra work and material required to excavate and fill a fissure in the bed of the river where the dam was to be built, discovered simultaneously by the parties after the contract was executed and the work begun:
The declaration contains four counts. The defendant demurred generally to the first, second, and third by enumeration, and pleaded to the fourth count. The demurrer was sustained as to the first and the - third counts, and those counts adjudged insufficient; but was overruled as to the second count, and that count adjudged sufficient, and the defendant concedes that it is sufficient, whereupon the plaintiffs claim that the demurrer is too large, and ought
It is objected that the first count is bad because it contains no allegation of a promise by the defendant to pay for the work specified therein, and claimed that such a promise should have been expressly and.positively alleged. And it is true that there is nothing in that count that amounts to an express promise by the defendant to pay, though there are allegations of abundant evidence of a quasi promise to pay. But that is not enough. There should have been an averment of assumpsit super se or its equivalent, for assumpsit, without assuming, is no assumpsit. Mr. Gould says that whenever the promise is implied, it is declared upon as an express promise, and that upon the face of the record it is always taken to be an express promise; that there is no such thing as an implied promise in pleading, or rather, that the fact of its being implied appears only in the evidence and never upon the record. Gould, PI. chap. Ill, sec. 19. He says in a note to that section that it is held in declaring in assumpsit on a bill of exchange against the drawer or on a promissory note against the maker, that a, statement of the facts that render the defendant liable to pay is sufficient without expressly alleging a promise on his part, the reason assigned being that the drawing of the bill or the making of the note is itself an actual promise, so that alleging the act of drawing or of making is virtually alleging a promise by the drawer or the maker, to pay. He says that whether this rule as far as it regards the declaration on a bill of exchange, (in which the drawer makes no express promise,) is agreeable to the analogies and principles of pleading, appears at least questionable, for in all other cases of indebitatus assumpsit the facts stated in the declaration as the ground of the defendant’s liability are regarded upon the face of the record only as the consideration of the promise that it alleges and must allege. So Mr. Lawes says that if no express promise is alleged nor other equivalent words used, the declaration will be bad even after verdict, for where the plaintiff declared
It is enough to say of this claim that there is no allegation in the count of any estimate of work under the written contract, and none of any such estimate of extra work sufficient to bring the case in that respect within said article. The allegation in respect of extra work is, that the amount and character of material used and labor performed for the excavation and filling of said fissure by the plaintiffs were, on the day next before their demand of payment thereinafter alleged, duly estimated by the defendant’s engineer. But that allegation goes only to the amount and character of the material used and the labor performed, and not at all to the sum to be paid therefor, which said article mainfestly called for, as the “total sum”, less all previous payments, was what the defendant promised to pay, if indeed a promise sufficient to support the count can be deduced therefrom in any circumstances. It follows, therefore, no promise being alleged in either cause of action, that the count is wholly bad for that reason.
It is further objected that the count is bad for not stating the facts relied upon to constitute the alleged waiver of the contract by the defendant in respect of the extra work and material required to fill the fissure in the bed of the river.
The contract provides, as we have seen, that the work should be performed thereunder according to the plans and drawings of such an engineer, which plans and drawings are made a part of the contract. The contract also provides that any work found necessary to be performed and not covered by the specifications and the contract, must be covered by an
The count avers that it was impossible to construct the dam as contemplated by the contract in accordance with said plans and drawings, because they represented the bed of the river at that place as substantially an even surface of rock or hardpan, whereas there was near the bank of the river a very deep fissure full of a substance unsuitable for the foundation of a dam, which required excavating and filling with concrete masonry in order to construct a dam suitable for the defendant’s purpose, which said condition could not have been discovered beforehand without experimenting at a great and disproportionate expense, and was not discovered by the plaintiffs until after they had executed the contract and begun work on the dam, in the progress of which they discovered the condition stated, which condition the defendant discovered at the same time, and thereupon waived the provisions of the contract as far as they related to the work required to be done by the plaintiffs and the material necessary to be furnished in order to fill the fissure and make the bed of the river at that point correspond with what was represented as its conformation in the plan of the engineer.
The defendant stops here when it says that the count is bad for not stating the facts relied upon to constitute the alleged waiver. But this is not warrantable, for the count goes on to allege the facts relied upon in this behalf, and avers that neither party had taken into account the possibility of any such work and material being required as were afterwards found necessary by reason of said fissure, and that neither could determine nor form any estimate as to how much labor and material would be necessary to fill the fissure, and that therefore no change was made in the plans and specifications, but that it was treated and considered by both parties that the work required for the perfection of the bed of the river was an independent undertaking in addition to, and entirely outside of, said written contract, and not covered by the provisions thereof requiring that any work found necessary to be performed and not covered by the specifications and the contract must be covered by an
The count further avers that the plaintiffs compared the plans and specifications with the site of the dam before submitting their bid, and made every reasonable inspection requisite to submit a bid for a lump sum to cover the total expense of securing a proper foundation and building the work specified to the lines and levels and in the manner called for by the plans and specifications, and according to the plans and drawings of' the engineer, and that, relying upon the contract and said plans and specifications, they undertook and agreed to furnish all labor and material and perform all work called for thereby at and for the price of $50,727.80, as the defendant then and there well knew; that they performed accordingly, and in addition thereto, filled up said fissure with concrete masonry at a further and reasonable expense of $18,000, and thereafter, on such a day, delivered said construction and said additional masonry to the defendant, which, with full knowledge of all and singular the facts aforesaid, it then and there received and accepted; that in the execution of said contract and in fixing the price for doing the work called for thereby, neither party anticipated nor took into consideration the possibility of any such work and material being required as was ' thereafter found to be required by reason of said fissure; that because it could not be known until said work was done how expensive it would be, the cost thereof could not be estimated in advance within reasonable limits, all which the defendant well knew when it received and accepted the construction as aforesaid; that the amount and character of the material used and the work performed by the plaintiffs in and about excavating and filling said fissure were duly estimated by the defendant’s engineer; that when the plaintiffs discovered said difficulties of securing a suitable foundation for the dam, the defendant was present by its inspector, and witnessed the daily progress of the plaintiffs’ work, and knew and realized what the plaintiffs were doing, and that in the performance of said work they were not following, nor working in accordance with, the plans and drawings of the engineer, and that if they followed them, the dam would be insufficient and would not hold water, and that
Thus do the facts appear upon which the plaintiffs rely to constitute a waiver. It is to be noticed that the count alleges that it was treated and considered by both parties that the work required for perfecting the bed of -the river was an independent undertaking in addition to, and entirely outside of, said written contract, and not covered by the provisions thereof requiring that any work found necessary to be performed and not covered by the specifications and the contract must be covered by an order in writing by the defendant, and be paid for at the actual cost plus ten per cent.
This allegation, being admitted by the demurrer, is more-than a waiver. It is a construction of the contract by the-parties, which, having been acted upon by the plaintiffs as it. was, precludes the defendant from repudiating it now, after
But if it were otherwise, and the work necessary to perfect the bed of the river required an order in writing by the defendant, yet the allegations of the count are sufficient to show a waiver of that requirement; and it is not claimed otherwise, and can not well be, for the defendant could waive that requirement, as it was made for its benefit, and when, by its inspector, it stood by day after day and saw the work go on without objection, and was content to let it continue until finally completed, knowing that no such order had been given, and also knowing, as it must have known, that the plaintiffs were expecting extra compensation therefor, and then receiving and accepting the completed structure without objection, and ever since using the same as its own, it must be taken to have waived its right in respect of such an order. Thus, where one holding a mortgage as collateral security, agreed to accept policies of insurance on a mill, if built of such and such dimensions, and discharge the mortgage, saw the mill being built of different dimensions without objection, and when completed, accepted policies upon it, but refused to discharge his mortgage because the dimensions of the mill were varied, — it was held that he could not be heard to complain of that, as he had acquiesced in it, and therefore must discharge his mortgage. Swain v. Seamens, 9 Wall. 254, 19 L. ed. 554.
Smith v. Alker, 102 N. Y. 87, 5 N. E. 791, was an action on a building contract for the balance due and for extra work. It was held that the owner could waive a stipulation in the contract that the final payment to be made by him should not be required unless the architect certified that the contract had been fully performed to his satisfaction, and that an acceptance of the building as under a completed contract was such a waiver, and entitled the contractor to recover the sum due although no certificate had been given, and although the architect was not satisfied.
In the specifications attached to the written contract for building the dam, is an article for referring all matters of dispute concerning the work, etc., to the defendant’s engineer, whose decision was made final. It is objected that the count is bad for not showing compliance with that article by the plaintiffs, for that such compliance is a condition precedent to their right to maintain the action. But that article applies only to disputes arising under the written contract, and not to disputes arising under the subsequent independent verbal agreement alleged in the count concerning the extra work. But treating it as applying to disputes arising under both contracts, it cannot be construed as embracing the dispute here involved, which goes to nothing concerning the work itself, but only to the question whether the defendant shall pay after having received and accepted it, and thereby waived all objection thereto, and made itself liable to pay therefor.
This objection is no more applicable to the third count than to the first count. But it is objected that the third count is bad for want of a promise by the defendant to pay. That count declares upon a new and an independent subsequent
The defendant pleads the arbitration article and noncompliance therewith by the plaintiffs in bar of the fourth count,which is the ordinary common count in assumpsit. The plea professes to answer the whole count, but answers, at most,only a part of it, for although the count declares generally for work and labor, materials furnished, and money laid out and expended; yet it also declares for goods sold and delivered, money lent, money had and received, and money due on an account stated, to none of which does the plea conform nor constitute an answer, for there is nothing on the face of either pleading to indicate that they relate to anything here involved; and though this objection was not taken at the hearing, it must be taken here, for the rule is that when pleadings end in a- demurrer, no fact can be treated as in the case that does not appear from the pleadings and is not admitted by the demurrer though admitted at the hearing. Columbian Granite Co. v. Townshend Co., 74 Vt. 183, 52 Atl. 432.
Judgment affirmed as to the insufficiency ■ of the first count, the sufficiency of the second count, and the insufficiency of the plea to the fourth count; but reversed as to the insufficiency of the third count, and that count adjudged sufficient. Both parties having excepted, and neither having fully prevailed thereon, neither are allowed costs vh this Court.