Baltimore & Ohio Rail Road v. Resley

Le Grand, C. J., delivered the opinion of this court. After the introduction of the testimony of the witness Dayton, and that of other witnesses to the same points, the defendants gave in evidence written articles of agreement between the plaintiffs and the defendants, from which it ³¹¹ appeared that it had been agreed upon between the parties, that a particular mode was fixed in which the character and value of the work to be done was to be ascertained. The clauses in the contract applicable to this branch of the case are in these words. After speaking of payments the contract proceeds thus: “The above payments shall be made in the following manner, that is to say, during the progress of the work and until it is completed, there shall be a monthly estimate made by the aforesaid engineer, of the quantity, character and value of the work done during the month, or since the last monthly estimate, four-fifths of which value shall be paid to the said parties of the first part, at such place as the chief engineer may appoint, and when the said work is completed and so accepted by the said chief engineer, there shall be a final estimate made by the engineer of the quantity, character and value of said work, agreeably to the terms of this agreement, when the balance appearing to be due to the said parties of the first part shall be paid to them, upon giving a release under seal to the said company from all claims or demands whatsoever growing in any manner out of this agreement.

And it is expressly understood, that the monthly and final estimates of said engineer as to the quantity, character ami value of the work done during the month, or since the last monthly estimate, and at the completion of the work shall be conclusive between the parties to this contract, unless the chief engineer may deem it proper at any time to revise and: alter, in such manner as he may see fit, the monthly or final estimates of the said engineer, in which event the estimate of the said chief engineer shall be substituted to all intents and purposes in place of the estimate of the said engineer, it being how'ever wholly optional with the said chief engineer to exercise such powmr of revision or not.” The defendant, after giving evidence of the work, estimates, payments, &c., proved by a witness that the contract had been modified. It appears from the evidence of the witness, that the plaintiffs representing that the work on the section was costing them too much, and that they could not go on with it at their contract prices, the ³¹² witness, who' was one of the engineers in the employ of the defendant, told one of the plaintiffs to go on with the work until he could have a conversation with the chief engineer about it, and that between the time of the conversation and the time when the chief engineer should decide what was to be done, the expenses of the plaintiffs would be paid and that they should lose nothing. Witness further says: “After the interview with the chief engineer he told Mr. Resley, (being authorized to do so by the chief engineer,} what he said, which was, go on with the work and you shall be. paid your estimates according to your expenses until the work is completed, then it shall be finally measured up and the quantities returned. If there shall appear to be any thing due you over what you have already received for the work done before this arrangement, it shall be paid to you.

The understanding was that he was not to lose what remained of his twenty per cent, in the hands of the company, on the work done prior to that time, and that he was to be protected from further loss on the work. Save in the particulars now enumerated, the contract was to stand as it was. His expenses were to be the monthly estimates.” The contract thus modified was this: after the whole work was completed a final estimate of the work done prior to the new arrangement was to be made,, and paid for, according to the stipulations of the written contract.- The work to be done after the new arrangement, was to be paid for according to its actual cost to the plaintiffs, and this cost was to be ascertained by the monthly account of expenses-. The defendant offered ten prayers, all of which were rejected.

They are numbered in the record from number two- to number eleven, both inclusive.- To each of these prayers was- urged several objections. We do not deem- it important that each of them should be considered,