Orange, Alexandria & Manassas Railroad v. Placide

Bartol, C. J., delivered the opinion of the Court. This is an appeal by the defendant. The only questions presented arise upon the third, fifth and sixth prayers of the plaintiffs, which were granted by the Court below; and the second prayer of the defendant, which was refused. The claim of the plaintiffs was for damages for an alleged breach of contract by the defendant, and for extra work and materials done and furnished at the instance of the defendant.

It appears that a written agreement was made between the parties, containing specifications of the work to be done, with the prices and terms; this agreement was dated the 16th day of August, 1867, but not signed by the plaintiffs until October 28th, 1867. They proceeded however in the meantime, in execution of the work. The contract stipulated that the prices were to be paid upon monthly estimates made by the company’s engineer, as the work progressed, as follows, viz.: one-third in cash, one-third in the bonds of the company, estimating them as worth seventy-five cents on the dollar, and the remaining third in bonds at the same rate, to be retained by the company until the work was done. Evidence was offered by the defendant ³¹⁹ tending to prove that the contract was modified and changed by the plaintiffs agreeing to accept money in lieu of the bonds, estimating them at sixty-five instead of seventy-five.

In accordance with the proposal made by the plaintiffs in their letter of the 18th of October, 1867, Mr. Barbour, who testified on this subject, construed that letter in that way, that is, as a proposal to take cash in lien of the bonds, estimating them to the company as worth sixty-five cents in the dollar, while the plaintiffs accounted for them at the rate fixed by the contract, viz.: at seventy-five cents in the dollar. We think it by no means clear that such is the real meaning or true construction of the letter. But it is immaterial now to discuss that question; for there was conflicting evidence before the jury as to whether the proposition in the letter was actually accepted, or any such modification or change in the contract made. This last was not signed till ten days after the letter was written, and Thomas Clarke, the plaintiff) (who testified as a witness,) stated that “ when he went to sign the contract, he asked Mr. Barbour, the president what the company were going to do about a proposition made by Placide & Clarke about the bonds mentioned in the contract.

Barbour said the company had not acted on it, and Clarke signed the contract, remarking that he supposed the bond proposition was rejected.” But this question was for the jury, and was properly submitted to them by the first prayer of the defendant, which was granted. This gave it the benefit of its defence under the contract as modified, provided the jury should find from the evidence that such modification had been agreed on by the parties. It has been argued that there was error in granting the plaintiffs’ third prayer, fixing the measure of damages. The appellant contends, that if two-thirds of the contract price was payable in the bonds of the company, and they were not tendered, the true measure of damages was the difference between the money actually paid, and the value of the part payable in bonds at the time when the bonds ought to ³²⁰ have been paid.

In other words, that the market value of the bonds, at the time when they ought to have been delivered, was the true standard of the plaintiffs’ right to recover. This general proposition is no doubt supported by the decisions of the Supreme Court in Hopkins vs. Lee, 6 Wheaton, 109 , and Robinson vs. Noble’s Admin., 8 Peters, 181 ; and has been sanctioned by the Court of Appeals