Seretto v. Rockland, South Thomaston & Owl's Head Railway

Peabody, J.

This action was brought by the plaintiff to recover certain sums alleged to be due him under a written contract for the building of an electric railway. The case comes before the law court on report.

The work was commenced by the contractor about the middle of April, 1904, and was abandoned by him about the ninth day of July of that year, before it was fully completed. The contract was executed by the parties under seal. The plaintiff declares in debt by two counts, the first being based upon- the items of an account thereto annexed • amounting to fifteen thousand nine hundred sixty-eight and eight one hundredths dollars ($15,968.08), and the second for like amount for goods bargained and sold, money lent, money paid, money received and money due upon account stated. Under the general count the plaintiff specifies the nature of the defendant’s indebtedness to him. By counting in debt the plaintiff’s right to recover is restricted to certain sums of money alleged to be due by the terms of the.contract, as recovery for damages resulting from a breach of its covenants would require a.different form of action.

It is admitted by the plaintiff that the contract was not completed, blit he-justifies its non-fulfillment. by the fault of the defendant. The defendant claims that the plaintiff, without just cause, abandoned „ the work and did so expressly because it did not yield to the imposition of a condition which was not a part of its obligation ; and it alleges, as a further defense to the action, that tlie plaintiff has not proved performance of such part of the work as entitled him,to any instalment of the stipulated compensation.

If the failure of the plaintiff to fulfil the contract-was not caused by the fault or default of the defendant and any damages have resulted, they may be offered by way of recoupment to reduce the compensation to which the plaintiff would otherwise be entitled, 9 Cyc. 686, but if he was prevented or is excused by reason of the fault of the defendant from performing the contract, he would be entitled to recover such sums as had become due at the date of the writ according to the account annexed, or specified under the second count in the writ. Jewett et al. v. Weston, 11 Maine, 346; Norris v. School District, 12 Maine, 293; Atkinson v. Brown, 20 Maine, 67 ; Andrews v. Portland, 35 Maine, 475.

It is suggested, as a technical defense to this action, that the plaintiff lias misconceived his remedy, even if there is merit in his claim, that it should have been assumpsit under the common counts, or covenant broken on a count declaring on the special contract. But the plaintiff upon his theory replies that in an action of debt he can recover the definite sums due under the special contract, whether for general work, extra work and materials, so far as the construction of the railroad has progressed, and for loss sustained by him on account of the enforced idleness of his workmen, as provided in the contract. The genera] rule is that debt lies wherever indebitatus assumpsit will lie. Larmon v. Carpenter, 70 Ill. St. 549; Van Deusen v. Blum, 18 Pick. 229; Veazie v. Bangor, 51 Maine, 509; Allard v. Belfast, 40 Maine, 369; Mc Vicker v. Beedy, 31 Maine, 314; Portland v. Atlantic & St. Lawrence R. R., 66 Maine, 485; Norris v. School District, supra. While this action is generally used for the recovery of a precise sum due under simple or special contracts, it may be maintained for a quantum meruit or quantum valebat. Smith v. First Cong., etc., 8 Pick. 178; Nat. Exchange Bank v. Abell, 63 Maine, 346. It would, therefore, be as available to the defendant to show any fact bearing upon the question of what the work done by the plaintiff was reasonably worth as if the action had been covenant broken or assumpsit. And the issue can be tried in this action whether the plaintiff' did general work, or did extra work and furnished extra materials, under the terms of the contract, to be ascertained as therein agreed, and whether, upon the facts proved, there were due to the plaintiff other sums of money at the date of the writ. In determining the sums, if any, due to the plaintiff he is limited in his proof to the specification of his claim, and against these items the defendant had the right to introduce counter proof. Gooding v. Morgan, 37 Maine, 419. The defendant offers no evidence, but relies upon the facts to which the plaintiff is limited by his form of action and tiie specification of his claim.

By the terms of the contract the plaintiff was to construct 21,920 feet of electric railway main track and 500 feet of second track, in accordance with specifications as to work and material, and extra work was to be done, constituting part of the construction of the railroad to which the provisions of the contract were to apply as fully as to the general work specified therein. The defendant was to pay for the completed work $17,500 in instalments every thirty days as the work progressed, to the extent of eighty-five per cent, thereof, estimated and certified in writing by the engineer of the railroad, Howard C. Forbes. There are provisional agreements which definitely authorize the engineer to complete the contract if the work is abandoned by the contractor, or unnecessarily or unreasonably delayed, and for adjusting compensation under suck conditions ; and also providing for indemnifying the contractor for any loss occasioned through the fault of the railway by not being able •to deliver materials, or in any other respect failing to carry out its part- of the agreement.-

The report shows that a bill for extra work, rendered by the contractor, amounting to. .$1353.02, another for extra work amounting to $1611.02, a bill for regular contract work amounting to $4958.33, estimated and certified by the engineer, were paid. The controversy in this suit relates to the sums alleged to be due subsequently, during the further continuance of the work, from May 21st to about the first of July, 1904, which have not been paid. The first of the unpaid- accounts was- for extra work, amounting to $2016.80, under date of June 4, 1904, certified by Mr. Bowers, -who acted as the engineer of the railroad after the retirement of Mr. Forbes. The second was for extra work, amounting to $2141.47, under date of June 18, 1904, and the third account, dated July 2, 1904, was for extra work, amounting to $1922.59, the two last being .certified by Mr.- Keene, then acting as the engineer of the railroad. The plaintiff claims also to recover the balance of amount due on general work, under an estimate made by Mr. Keene and reported in writing to the company June 24, 1904, viz. $13,125, less amount paid on account of general work, $4958.33.

The contract between the parties provided, among, other things, “ Whenever the word ‘ engineer, or a pronoun in place of it, is used herein, it shall be and is mutually understood to refer to Howard C. Forbes, 4 State Street, Boston. And it was further ’provided, “ For completing the electric railway as herein specified the sum of Seventeen Thousand Five Hundred Dollars ($17,500,) which shall be in installments every thirty (30) days as the work progresses to the extent of 85 per cent. (85 per cent.) of the estimates of the work done, prepared and certified in writing by the engineer, the remaining 15% shall be due ten (10) days after the work is completed upon the inspection and acceptance in writing by the engineer.” “For all extra work done and extra materials furnished by written order of the engineer, for which no price is set in written order, its actual and reasonable cost to the contractor as certified by the engineer, plus ten per cent. (10 per cent.) of said cost, which sums shall be due in installments of every 14 days as the work progresses, to the full amount of the estimates of the value of work done, prepared and certified in writing by the engineer.”

To entitle the plaintiff to recover he must show performance of the contract on his part, or excuse for its non-performance. He is required to prove, in the manner agreed upon, that these items were due when the suit was commenced: It was mutually covenanted that the installments to be paid by the defendant to the plaintiff should be determined by the engineer of the railroad company designated by name. His estimate and certificate would be binding upon both parties, in the absence of fraud, while he continued to act in the capacity of engineer. Mar. & Pot. R. R. Co. v. March, 114 U. S. 549; Condon v. South Side R. R. Co., 14 Gratt. 302; Howard v. All. Val. R. R. Co., 69 Fa. St. 489; McCauley v. Kallar et al., 130 Pa. St. 53.

It appears that Mr. Forbes commenced to act as engineer in the construction of the railroad with Mr. Bowers as his assistant, that about the middle of May, 1904, he was discharged, and upon his retirement Bowers was specially authorized by the president of the company to act according to his judgment relative to the cuts and fills in the construction of the railroad, and in general was .recognized as the chief engineer. The superintendent of the plaintiff was informed by the president of the company that Mr. Bowers had been appointed engineer, and that Mr. Forbes was to certify no more bills. Mr. Bowers left the employment of the defendant company and Mr. Keene, who had been his assistant, was, on June 21, 1904, given general written authority by the president of the company to act as engineei-, and he continued to act in that capacity until the work was suspended. These successors to the oi'iginal engineer nxade the estimates and certified thereto as has been stated. Their appointment by the chief officer of the railroad company, the notice given to the plaintiff and his acquiescence in the substitution constituted a waiver by both parties of the conditions of the contract in reference to the estimate and certification of the work as it progressed, and is binding upon them. There was an implied agx’eement that upon any contingency which prevented the original engineer from continuing to act, a different method should be adopted for determining the instalments which should become due to the plaintiff.

The defendant could not, by removing the engineei-, bar the plaintiff’s right of recovery. Such a construction would place a premium on wi’ong doing. Ricker v. Fairbanks, 40 Maine, 43; Haynes v. Fuller, 40 Maine, 162; Emerson v. Coggswell, 16 Maine, 77 ; Bank v. Curtis, 24 Maine, 36. There might have been objection on the part of the plaintiff to the successoi-s of the engineer designated in the conti-act, but it is shown by his acts that he assented to the substitution. But the defendant, by whose acts the substitution was made, is estopped from denying the authority of these engineers.

It is insisted by the defendant that it was a condition precedent to the plaintiff’s right of x-ecovery that the estimates and certificates should be made in the manner stated in the contract. This would be true if any definite method or form is requix-ed, unless the condition is waived or excuse for its omission is shown. McNamara v. Harrison, 81 Ia. 486; Michaelis v. Wolf, 136 Ill. 68; 1 Beach on Contracts, secs. 100, 101, 102. The reqxxix-enxent as to the estimates and certificates of the engineer is simply that the contx-act price for the genex-al work should be due “in instalments evex-y thirty (30) days as the work px-ogi-esses to the extent of 85 per cent. (85 percent.) of the estimate of the work done, prepared and certified by the engineei-,” and the written i-eports of the engineex-s of their estimates appear to us sufficiently explicit to comply with the terms of the contract. McCauley v. Kellar et al., supra ; Drhew v. Altoona, 121 Pa. St. 40 ; Ricker v. Fairbanks, supra. It would appear, therefore, that these items of' work and materials are proved in the manner required by the contract and would be recoverable, uniese defeated by the failure of the plaintiff to fulfil his contract without fault on the part of the defendant. The evidence shows that the failure of the defendant to pay the instalments found due by the engineers was the reason why the work was abandoned by the contractor. It is argued that the plaintiff required security for future instalments in addition to the payment of present indebtedness not authorized by the terms of the contract; but we think that immediate payment of what was due was separable from a condition which the defendant might refuse, and, after demand, which the evidence shows was repeatedly made by the plaintiff, he was justified in discontinuing the work. 80 far as it had progressed he must be regarded as having fulfilled the contract and may recover the instalments of the general work due, together with the fifteen per cent contingently deferred, and the sums due for extra work done and extra materials furnished, determined according to the terms of the contract.

The item of loss to the plaintiff by reason of the enforced idleness of his workmen, appears to be established by the evidence as the result of the defendant’s fault, to the amount specified in the plaintiff’s claim, and is clearly due within the terms of the contract.

Another item of the plaintiff’s claim in controversy is the amount paid for insurance against accidents which is required to be maintained by the contractor at his own expense. It was to cover all work “embraced in this contract.” The plaintiff claims that the employer’s liability insurance which he is required to maintain applies only to the general work, and that the amount paid for insurance claimed in this action relates only to extra work and is an element of expense constituting a part of the actual cost. But the language of the contract requires that the insurance in connection with the extra work, as well as the general work, shall be maintained at the expense of the contractor. This is the necessary implication from the provision relating to extra work when ordered by the engineer, that “all and singular the provisions of this contract shall apply to said extra work as if the same were specified in the contract.” The amount of this item must be disallowed.

Upon these considerations we hold that the plaintiff should recover the balance due for general work, $8166.47, the aggregate for extra work claimed less the amount of liability insurance, $5881.87, loss by idleness of his workmen, $1152, and lumber sold railroad company, $468.24. Judgment should be entered accordingly.

Judgment for plaintiff for $15,668.58.