Sullivan v. Susong & Co.

The opinion of the. court was delivered by

Mr. Justice McIver.

It seems that the plaintiff, under certain written contracts with the Atlantic, Greenville, and Western Railway Company, had graded two sections of said railway, which contracts, amongst other things, specified the amount per cubic yard, which the plaintiff should be entitled to receive for such work, varying according to the nature of the materials handled; so much for each cubic yard of earth, so much for each cubic yard of loose or soft rock, and so much for each cubic yard of solid rock. These contracts also provided that the work was to be done under the supervision of the chief engineer of the company, and to be paid for according to his estimates. The chief engineer made his final estimates, ascertaining the total amount due plaintiff by the company under these contracts, upon which sundry payments were made by the company, leaving a considerable balance still due to the plaintiff. At this juncture the defendants entered into a written contract with the railway company, to which contract, however, the plaintiff was not a party, whereby the defendants, for valuable consideration, undertook to pay the debts of said railway company. This contract appears to have been executed on December 21, 1886, but as po copy of it appears in the “Case,” we are not informed, except as above stated, of its terms, though it is stated in the decree of the Circuit Judge that, under this contract, the defendants assumed to pay all the debts of the company, but provided that “the work done and to be done should be measured and valued;” and from the fact that the words which we have placed within quotation marks are found within similar marks in the decree of his honor, we infer that the contract was before the Circuit Judge, and that the words quoted were taken from the contract.

The plaintiff claiming that the amount due him by the railway company, which had thus been assumed by the defendants, had been fixed by the final estimates of the chief engineer of the company, and the defendants questioning the correctness of such estimates, and refusing to be bound thereby, with a view to settle this difference the parties, on January 28, 1887, entered into an agreement under seal, a copy of which is set out in the “Case,” whereby the plaintiff, in consideration of the sum of eight thousand dollars then paid to him by the defendants, agreed “to await the payment of the balance due” him for the work done on the railroad “until the said work shall be measured, and the value thereof computed by two competent civil engineers,” one to be selected by plaintiff and the other by defendants, with an umpire, “said work to be measured and computed as soon as may be practicable, and in accordance with the specifications of the contracts” with the railway company under which the work was done ; and the plaintiff bound himself “to accept and receive the balance which is shown to be due'me by said report of said engineers in full discharge of all claims against said Susong & Co. and against said railway company.”

On the same day both parties — plaintiff and defendants— signed a paper, not under seal, which reads as follows : “In pursuance of the foregoing agreement we, the undersigned, do hereby select the following engineers to make the measurements and valuations therein provided, to wit: the said W. E. Sullivan selects St. John Cox, and the said Susong & Co. select I. IT. Harrison, and W. A. Jones and G. P. Sullivan are hereby chosen as umpires in case they are needed; and the said Susong & Co. agree to abide by the report of said engineers, and to pay the balance found due to said W. E. Sullivan by their report when the same is rendered, or within a reasonable time thereafter, and the parties hereto are to hear the expenses of said measurement, valuation, and report equally.” Yery soon after these papers were signed it was ascertained that Cox, one of the engineers selected, owing to ill-health, was unable to act, and the defendants claiming that Cox was, in fact, their selection (though, as the paper above copied reads, he appears to have been selected by plaintiff), insisted that by a clerical error in the- draughtsman of the paper the names were reversed, and assuming that they had a right to supply the place of Cox, named H. M. Ramseur for that purpose, without consultation with, or notice to, the plaintiff.

In pursuance of such appointment, Ramseur and Harrison began the examination and measurement of one section of the work on February 8, 1887., and finished on the 19th of that month; the other section they began on the 12th and finished on March 18, 1887. They then made their report, fixing the value of the work at a sum much less than that fixed by the final estimates of the chief engineer of the railway company. It seems, however, that in making their estimate they calculated the whole amount of cubic yards at the rate fixed by the original contracts with the railway company for each cubic yard of earth, without taking into account the higher rates fixed by those contracts for loose rock and for solid rock. In the meantime, however, the plaintiff, claiming that he had a right to substitute another engineer in place of Cox, on March 14, 1887, addressed a letter to the defendants,- naming T. B. Lee for that purpose, which letter urns delivered on the 15th, the next day; but no notice was taken of it, and Lee never assumed to act.

The plaintiff, declining to recognize the report of the engineers, Ramseur and Harrison, brought this action to recover the balance due on the final estimates of the chief engineer of the railway company, after deducting certain payments made by said company, as well as the sum of eight thousand dollars paid to him, as aforesaid, by the defendants on the execution of the agreement of January 28, 1887, alleging that his work was reasonably worth the amount fixed by said final estimates. To this complaint the defendants answered, setting up several defences, which need not be specifically stated here, as the issues raised will be hereinafter considered, so far as they are applicable to the present appeal. By consent an order was passed referring the case to James Aldrich, Esq., as special master, to take the testimony and determine the issues, both of law and fact. In his report the master presents the case so fully and clearly that it should be incorporated in the report of this case. Both parties excepted to this report and the case ivas heard by Judge Pressley upon the report and exceptions, and his decree is set out in the record, and should likewise be embraced in the report of this case. From this decree the plaintiff appeals upon the several gounds set out in the record, which need not be repeated here, as we propose to consider what we regard as the material issues in the case, without following the several exceptions in the order in which they are presented.

If, as stated by the Circuit Judge in his decree, the contract of December 21, 1886, whereby the defendants assumed the payment of the debts of the railway company, contained a provision that the work out of which the plaintiff’s claim arose should be measured and valued, we do not see how the plaintiff could maintain an action against these defendants until that provision ivas complied with. They were not parties to the contracts between the plaintiff and the railway company under which the work was done, for which he is now seeking compensation. They Avere under no liability Avhatever to the plaintiff originally, and if they have assumed such liability upon terms, it seems to us clear that in order to fix their liability such terms must be complied with. It is manifest that the defendants were unAvilling to assume liability for the amount due to plaintiff, as ascertained by the final estimates of the chief engineer of the railway company, and refused to accept such estimates as a proper ascertaiment of the amount of work done by the plaintiff. This being so, the parties entered into the agreement of January 28, 1887, whereby the plaintiff bound himself to await the payment of the balance due him until the work shall be measured and its value computed according to the specifications of the contracts with the railway company by two civil engineers, to be selected in the manner therein prescribed. So that if there had been any doubt before as to the right of the plaintiff to maintain an action against defendants for the value of the work done by him for the railway company until such work was remeasured, this agreement effectually dispelled such doubt, as such agreement expressly provided that the plaintiff should “await’’ payment until the work was measured and its value computed by two competent civil engineers, to be selected in the manner prescribed in the agreement. It follows, therefore, necessarily that until this was done no action could be maintained by the plaintiff against the defendants, unless it was shown that the performance of the condition precedent to payment had become impossible, or its performance defeated by the fault of the defendants, in which case, doubtless, the plaintiff would be remitted to his -original rights, whatever-they might be. United States v. Robeson, 9 Peters, 319; Holmes v. Richet, 56 Cal., 307; S. C. 38 Am. Rep., 54; Campbell v. Am. Pop. Life Ins. Co., 1 McArthur, 246; S. C. 29 Am. Rep., 591; and Sullivan v. Byrne, 10 S. C., 122.

It may be that the plaintiff acted incautiously and unwisely in binding himself to await payment of his claim until the work should be remeasured, but he was probably induced to take such action by the present advantage of receiving a cash payment to a large amount; and il seems to us that he cannot fall back upon ■ his original rights without surrendering such advantage, which it does not appear that he has ever done or offered to do. There can be no doubt that the defendants were induced to make this large payment for the purpose of obtaining a remeasurement of the work, and if the agreement of January 28, 1887, has failed from no fault of either of the parties, but from the inability of one of the engineers originally selected to act, as both the special master and Circuit Judge seem to have found, then -we think it clear that the plaintiff would not'be entitled to maintain an action against the defendants until he had refunded the eight thousand dollars and thereby placed the parties in statu quo. But the Circuit Judge seems to have taken a view of the case much more favorable to the plaintiff, and as his view has not been excepted to by the defendants, probably for the reason that they are willing to pay what may be found due the plaintiff upon what they regard as a proper measurement of the work, as is stated by their counsel in his argument, without insisting that the eight thousand dollars shall be refunded, but that it shall stand as a partial payment on the amount so found to be due, we are not disposed, and perhaps have not the right, to substitute our view for that taken by the Circuit Judge.

It only remains for us to consider whether there is any such error in the conclusion reached by the Circuit Judge prejudicial to the appellant as requires us to reverse it. The special master held that after the parties had made their selection of engineers, under the agreement of January 28, 1887, neither party could supply the place of Cox, who was unable to act, their power of selection being exhausted by its first exercise. He therefore held that the parol evidence offered to show the alleged clerical error or mistake, in designating the names of, the persons selected by each of the parties, was irrelevant, being wholly immaterial; and upon this and other grounds stated in his report he ruled out the testimony. The Circuit Judge does not seem to have made any distinct ruling upon this point. But from the fact that he says in his decree that the testimony conclusively showed that there was such clerical error or mistake, we infer that he regarded the testimony as admissible. He held, however, that the estimate made by Ramseur (who had been substituted by the defendants in place of Cox) and Harrison was not made in accordance with the specifications of the plaintiff’s contracts with the railway company, as required by the agreement of January 28, 1887, and thei'efore that such estimate was properly rejected by the special master; and in this we agree with his honor. It seems to us, therefore, that the question as to the admissibility of parol evidence to show a mistake in the designation of the engineers becomes wholly immaterial and need not be considered.

The Circuit Judge further held : “That after the failure of St. John Cox to serve as one of the engineers chosen for the new measurernent of plaintiff’s work, neither party, without the consent of •both, had the right to select another engineer in the stead of St. John Cox. But in my opinion it is the imperative duty of this court to supply that defect and to order the new measurement which both contracts expressly called for.” He therefore rendered judgment recommitting the case to the special master, with instructions to require each party, within a prescribed time, to select suitable engineers to remeasure the work, and providing that if such selection be not made by the parties within the time limited, then that the special master make the selection. In one of his grounds of appeal the appellant contends that the court had no power to make such an order. But aside from the fact that such an order is much more favorable to the plaintiff, as we have seen above, than anything he could obtain under a strictly legal view of his case, it seems to us that the case of Hall v. Warren (9 Ves., 605) affords authority for such an order.

In the case of Milnes v. Gery (14 Ves., 400), cited by appellant in support of his view, the application was that the court should appoint a person or persons, in place of the two selected by the parties to value the estate, who had failed to agree. There the proposition was to take away from the parties the right to make the selection and give it to the court, while here the order still left it to the parties to make the selection, and it was only in case of their refusal to do what they had agreed to do, that'the selection is to be made by the court. We do not think, therefore, that the ease is applicable. The other case relied on by appellant, Blundell v. Brettargh (17 Ves., 232), does not seem to be in point. In that case the agreement was for the sale of an estate at a price to be fixed by arbitrators, whose award should be made within a prescribed time. Before the time limited had expired, and before the award was actually made, one of the parties died, and the question was whether specific performance of the award thus made could be required. We do not understand that there was any question in that case as to the power of the court to require the parties to make another selection of persons to value the estate after the first had failed.

The plaintiff, in one of his grounds of appeal, raises the question whether he was not entitled to interest on his demand. Both the special master and the Circuit Judge held that the claim of the plaintiff against these defendants was an unliquidated demand, and therefore not entitled to bear interest. In this view we concur, as the amount which the defendants had assumed to pay was clearly unascertained until the work was remeasured.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.