86 W. Va. 440 | W. Va. | 1920
A writ of error by plaintiff to the judgment below, pronounced on August 30,1919, setting aside the verdict of the jury in its favor for $76,963.32, and the special findings of the jury in answen to special interrogatories submitted to' them by the court, and granting defendant a new trial.
Plaintiff, the principal contractor, sued defendant in assump-sit, on the common counts, laying its damages at $125,000:00, the several items in the bill of particulars filed aggregating with interest added $101,403.43. The first fourteen items of this account, aggregating $45,781.70, cover labor and work alleged to have been done and performed by Gist Brothers Company, subcontractors under plaintiff, in the work of double tracking and additional tracking of a portion of defendant’s railroad through Wyoming County. The remaining items of said account, pertaining to that part of the work done by plaintiff or another subcontractor, as follows: (1) Balance allowed plaintiff by defend
Besides the general issue pleaded defendant interposed a special plea in writing wherein it alleged that the work done and material furnished by plaintiff were done and performed under and pursuant to a contract with defendant, dated June 16, 1913, a contract in writing supplementary thereto, dated September 19, 1913, as modified by letter from defendant’s chief engineer, dated October 14, 1913, thereby shown to the court and made a part of the plea, wherein it was provided that upon the final completion and acceptance of said work the chief engineer of defendant should issue a certificate over his signature, that the whole of the work provided for in said contract had been completed and been accepted by him under the terms and conditions thereof, and that thereupon the entire balance found due plaintiff should become due and payable to it at the office of the treasurer of the defendant within twenty days after the date of such certificate; provided, that if defendant should require it before making payment of the final balance, plaintiff should execute to defendant a release under seal of all claims or demands whatsoever in any manner arising out of said contract, and’ furnish satisfactory evidence, should it be required, that all bills against it that might in any way remain as liens against defendant for the payment of which plaintiff was liable under the terms of said contract had been fully paid; and provided further, that before payment of any estimate, monthly or final, defendant’s chief engineer might require of plaintiff payment of all bills and accounts for all labor, material or supplies provided under the contract during the period covered by such estimate or at any time prior thereto, and also proper releases of all liens of labor-ers, material men, sub-contractors or others for work done or material or supplies furnished up to and including the term covered by1 such estimate, and that defendant should have the right to apply any funds of plaintiff in its hands to the payment of all such liabilities of the contractor, which should be considered and accepted as payments on said contract. And the plea
To this plea plaintiff interposed a special replication, averring that it was not altogether true, that the work done and material furnished and sued for had been done and furnished pursuant to the written contract and supplemental contracts as averred in defendant’s special plea; that in addition thereto said work had been done and material furnished pursuant to a further supplemental agreement entered into between plaintiff and defendant on the-day of September, 1913, by which, in consideration that plaintiff at great expense had shipped onto the work ample equipment etc. required to perform and complete within the time stipulated the work contemplated under the original contract, and that changes in the plans had been made by defendant after the arrival of said equipment on the ground, whereby the amount of work remaining to be done would not be sufficient to reimburse plaintiff for the cost of making such' preparation, it was. agreed between
Upon the issues joined on these pleas the case was tried to the jury with the result already indicated. In their response to the several interrogatories submitted, covering the work of the Gist Brothers Company, as to item number one, “Clearing E. Elmore to Mullens, $933.90”; Item number two, “Grubbing E. Élmore to Mullens, $140.13”; item number six, “Extra Bills 1 & 2, $1591.12”; item number nine, “Extra work on coal tipple at Elmore Yard, $3233.04”; and item number eleven, “Extra bill for resloping and finishing required by the Virginian Railway Company after same had been done according to engineer’s instructions, $3429.87”, the jury answered that they had found nothing in favor of plaintiff; but as to the other items of said Gist Brothers Company, they.found for plaintiff as follows: on item number three, “Excavation East Elmore to Mullens, $8,594.02”, the sum of $8,594.02; on item number
By instructions numbers two to thirteen inclusive, all of which except number six given were rejected on the trial, the defendant proposed to have the court tell the jury peremptorily to find for the defendant on each of the several items in said account relating to the work done and material, furnished by said Gist Brothers Company. By the only instruction proposed by plaintiff, and given by the court, the jury were told that if they believed from the evidence in the case, that the final estimate rendered by the chief engineer of defendant ivas so far inaccurate as to amount to fraud or bad faith, it does not hind the contracting parties. We dp not think there was any evidence adduced before the jury justifying this theory of fraud or mistake on the part of the chief engineer, as we will endeavor to point out hereafter. And the court below in disposing of defendant’s motion for a new trial, based in part on the court’s refusal to give proper instructions in its behalf, evidently became satisfied that plaintiff had not proven a case, entitling it to recovery at this time, for it set aside the verdict of the jury in its entirety and awarded defendant a new trial.
Section 30 of the original contract, among the numerous other provisions thereof, binding principal and sub-contractor alike, and relied on by defendant at the trial, provided as follows:
“To prevent any dispute, doubts, difference or litigations arising or happening, touching or concerning the work to be
The record shows that pursuant to the foregoing section of
We have decided, in accordance with the rule, everywhere, that when a construction contract provides as does the one involved here that the chief engineer or architect'shall be judge and arbitrator to settle doubts, disputes and differences arising between the parties, his decision and award thereon becomes final and conclusive on the parties, unless the same be impeached for fraud or mistake so gross as to amount to fraud. And this rule applies to the final estimate of such engineer or architect. Sims v. Carpenter, Frazier & Co., 68 W. Va. 223; Fuccy v. Coal & Coke Railway Company, 75 W. Va. 134; Vaughan Construction Company v. Virginian Railway Company, 82 W. Va. 658. Plaintiff’s only instruction to the jury recognized the law of these decisions and undertook to submit to the jury the fact of fraud or mistake, on the part of the chief engineer, and if there had been any evidence justifying such finding, the instruction would have been proper and the finding of the jury there.on conclusive, but there was not.
Referring again briefly to the several items in the bill of particulars covering the work of Gist Brothers Company, upon which the jury found in favor of plaintiff, the first was based on the claim that the excavation east of East Elmore was properly measured by the capacity of the cars in which the material was hauled. The contract provided that it should be measured only as excavation, and plaintiff and Gist Brothers Company were requested by the chief engineer before making his final estimate and award to examine all measurements and consult the reports
We have yet to dispose of the two remaining items of the account as found by the, jury. The first of these needs no further consideration so far as the amount thereof is concerned. As already stated, it covers the amount of the final estimate,, $15,-663.56. The only question presented as to this item is as to the right of the plaintiff to recover without first having satisfied or procured a release of the Gist Brothers Company claim involved in the pending suit. Certainly there can be no doubt about the right of the defendant to withhold this payment. The contract in express terms so provides. This is undoubtedly the correct view of the, rights of the parties, unless the plaintiff’s contention respecting the last item now to be considered be well founded on fact and law.
This last item, covering the so-called “Force Account”, is based on plaintiff’s theory of an alleged modification of the contract made with defendant’s chief engineer in September 1913, due to the alleged change in the original plan of the work to be done, after entering into the original contract, and the issue on which was presented by plaintiff’s special replication to defendant’s special plea. The only evidence offered by plaintiff in support of the supposed modified contract is that of John L. Vaughan. The chief engineer positively denies it. But if actually made, the defendant denies the authority of the chief engineer to so modify the written contract without its consent or approval, never given. The, alleged consideration for the modification of said contract averred and sworn to by Vaughn was that the railway company, after plaintiff moved its equipment on the ground, so modified its plans as to eliminate or reduce a particular cut from about 65,000 yards to about 9,000 yards of excavation, thereby to deprive plaintiff of the most profitable part of the contract. The contract provides for such changes and modifications of the plans, and how the contractor is to be
We have yet to dispose of defendant’s cross-assignments of error. In view of the new trial awarded some of these may present material questions. ' The first relates to the ruling of the court on objection to certain of the testimony of Geo. W. Gist and John L. Yaughan, and later, the motion of defendant, overruled, to strike out the testimony of these witnesses, which was, (1) hearsay and not within their personal knowledge, (2) was based on records, measurements and calculations not made by the, witness, and (3) such of it as was in conflict with the provisions of the contract between the parties. Manifestly all the evidence of these witnesses in conflict with these general rules of evidence should have been excluded. In disposing of the rulings of the court in respect to the several items of the account, we, have, we think, sufficiently indicated an opinion on the competency of the evidence of these witnesses to guide the court on another trial without encumbering this opinion with a discussion of each of the items of evidence pointed out in the motion addressed to the circuit court.
The third cross-assignment is that the court should have given defendant’s instructions numbered 1 to 15 inclusive. Of these the court seems to have given number 6; as to the others we have already indicated the opinion that the court should have given as requested numbers 1 to 13, which includes num
Finding no reversible error in the judgment setting aside the verdice and awarding defendant a new trial, it must be affirmed. Affirmed.