October 10, 2012

Eddington-Griffiths Const. Co. v. Turner, Laurel, 1910

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EDDINGTON-GRIFFITHS CONST. CO. v. TURNER.

COURT OF APPEALS OF KENTUCKY

124 S.W. 800; 1910 Ky. LEXIS 667

February 1, 1910, Decided

PRIOR HISTORY:  [**1] 
Appeal from Circuit Court, Laurel County.

Action by Jesse Turner against the Eddington-Griffiths Construction Company. Judgment for plaintiff, and defendant appeals.

DISPOSITION: Affirmed.

COUNSEL: Sam C. Hardin, for appellant.

J. M. Robsion, for appellee.

JUDGES: O'REAR, J.

OPINION BY: O'REAR

OPINION

 [*800]  O'REAR, J. Appellants were contractors for the building of a double track railroad for the Louisville & Nashville R. R. Co., in Laurel county. They sublet certain parts of the grading to subcontractors A part was sublet to appellee, which was making the fill for the track for a distance of about 2,000 feet. The fill was to be made of earth, and include the construction and material for two culverts, to be made of stone and concrete. The price for the culvert work is not in dispute. The price of the fill was to be 19 cents a cubic yard; material to be furnished to appellee, and he to furnish tools, teams, and labor. A written contract was prepared by appellants (whose place of business was Knoxville, Tenn.), and sent to appellee for signature. He declined to sign it, but returned, it with a letter indicating his objections. The contract as prepared was never signed. But it seems that the parties were then agreed in the main as to terms of the contract, and appellee went to work to execute it. In order to make the fill more earth was required than could be got from the work. The railroad company had agreed with its contractor to furnish necessary "borrow pits" adjacent to the work, from which to get the needed earth. Owing to the heavy rains and unusually wet season the borrow pit first furnished was not workable for much of the time. It was low, swampy ground, lower than the surface, which would drain it after it had been excavated to some extent, so that the rains soon filled it with water so that it could not be worked. Appellee demanded of appellants that they provide another borrow pit, which by letter they agreed to do, but failed. After waiting some weeks, appellee threw up the job, and brought this suit to recover for the work which he had done, at the contract price, less payments made to him, and for damages for the breach of the contract by appellants—suing to recover the profit he would have made if he had been allowed to finish the job.

The writing which was prepared to evidence the contract stipulated that the earth was to be measured in the borrow pits, and not in the fill. That is, the dimensions of the holes from which the earth was taken were to be ascertained by the engineers of the railroad company, and the solid contents put into the fill thus to be calculated and paid for at the contract price. Monthly estimates were to be made, and were made, by the railroad company's engineers, upon which appellants paid appellee 90 per cent of the sum earned on the work thus shown to have been done. The remaining 10 per cent. was retained until the work was completed, as a guaranty of its proper execution. Appellee was paid 90 per cent. of the contract price upon the estimates so made, except for the last few days which he worked. After he quit appellants took charge of the work and finished it, and were paid for it by the railroad company. Before appellants took charge, appellee wrote them that he was not satisfied with the measurements that had been made, and that he proposed to have an engineer measure the work. Appellants answered for him to do so. He did employ an engineer of experience in that character of work, to measure the fill in January of 1908, who reported, and on the trial of the case testified, that the fill contained 20,932 cubic yards of earth. Appellants failed to settle with appellee, and he brought this suit, as stated.

Appellants contend that the measurement  [*801]  made by appellee's engineer was upon the wrong basis; that he should have measured the borrow pits; that the difference is about 8 per cent, less in the borrow pit measurement as compared with the fill. They admit that the quantity of earth was 18,664 feet, measured in this way. If it should be conceded that the written memorandum, unsigned, constituted the best evidence of the contract, and correctly stated the contract on this point, yet it was not shown that appellants even caused the borrow pits to be measured by the railroad company's engineers when appellee quit the work, so as to ascertain the quantity of earth that had been removed from them. True, they had from time to time made estimates of the earth removed, but the evidence was quite conflicting whether the estimates were made upon measurements of the borrow pits. On the contrary, it seems that they were not always so made. At any rate they were only estimates, and were not conclusive, nor intended to be, upon anybody. The purpose was to approximate the work done, so as to ascertain what sum could be safely paid upon it. As they were not such measurements as the writing contemplated, upon which exact settlements would be made, they are not conclusive upon the parties. As appellants afterward went to work in these same pits, or some of them, and materially changed them, so that now it would be impossible, as it was when the suit was brought, to make an accurate measurement of them as of the date when appellee quit the work, the question arises, What method was open to the parties to ascertain the quantity of earth moved by appellee? He pursued a natural course, and that, too, after having apprised appellants of his purpose to do so, and with their tacit consent, which was to have another engineer of experience measure the work. The evidence was conflicting whether the measurement would show more earth in the pit than in the fill. One authority upon engineering, the only one introduced or alluded to by the engineers, holds that the measurement will show slightly less, as that by tramping the earth in hauling over it as it is placed loose in the fill, it will shrink to a less volume than when in its natural state before removal. The measurement in this instance was made some months after the work—the most of it—had been done; after it had been hauled over and allowed to settle by time and wet seasons. It is likely that the difference, if there was any, was not material, at any rate the measurement as done by appellee was the only method that was open to him, as the pits were filled with water so that they could not be measured accurately. After appellants took charge of the work and had made some progress upon it, the conditions were so changed that any other way of measuring the work was impossible. By their own conduct they made it impossible to have a literal compliance with the conditions of the contract, assuming the writing shows the contract. Appellee was not bound to do the measuring of the work in any event. That was to be done by the railroad engineers. If they failed, as they did, appellee should not lose because of that fact. Nor is it now shown in the evidence what quantity of earth was removed from the pits by appellee, by measurements and calculations of the railroad engineers. They show estimates of work done from time to time, which are assumed to be approximately correct, but not until the work was finally turned over to the railroad company did they make the accurate measurement called for by the original contract. Under these circumstances it was for the jury to find from the evidence the quantity of earth actually removed by appellee under his contract.

If appellee had abandoned his contract without cause, and still assuming that the writing was the contract, he would have forfeited the 10 per cent, retained by appellants upon each monthly estimate as liquidated damages; such being the stipulation of the contract. If, however, appellants failed to furnish him the material, so that he could not finish the work, they will not be allowed to forfeit the sums retained. It may be true, as insisted by appellants, that the railroad company was to furnish the borrow pits. Still, as between appellants and appellee, the latter was not to furnish them, and the failure of the railroad company, if it did fail, was sufficient excuse for appellee's not completing the job. Suppose the railroad company had, when the work was half done, abandoned it altogether, would that make appellee liable in damages to appellants? But the facts appear to be that the railroad company did fnrnish borrow pits to the appellants, but they somehow failed to notify appellee of the fact. Such the jury found, and such we find from the record. Therefore, in no event, was appellee in default on the contract.

There was a dispute whether appellee completed one of the culverts, and as to how much he did on the other (the latter was condemned by the railroad company, and subsequently finished by appellants, but material gotten out of appellee was used in the work). These matters were submitted to the jury.

As to the damages for the breach of the contract—that is, for plaintiff not being allowed to finish the work—the court told the jury not to consider that branch of the case.

The views herein expressed were applied by the court in the conduct of the trial, and under the admirably clear instructions given the jury, the verdict was for appellee for $1,000. We see no error.

Judgment affirmed.

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