Brown, President.
Several points are made for the determination of the court. And 1st, "Whether an action can be maintained on the common counts in assumpsit for work and labor, care and diligence, done under the following circumstances, viz: the parties, plaintiffs and defendant, had entered into a special contract, by which the plaintiffs were to make sections 161 and 162 of defendants’ railroad, in a special manner, under the supervision and control of the defendants’ engineers, to be completed by a specified time and at a specified price; estimates thereof to be made by said engineers, and acquittances executed by plaintiffs before payment. Much of the work was done under the contract and the road partly finished and partly paid for, but the plaintiffs failing to complete the same in the time specified, they continued the work with the consent of the defendant, until the same was completed, or accepted as completed by the company’s engineers having the supervision and control thereof, and final estimates made and rendered.
The declaration contained no special count on the special contract, but the common counts only. And it was objected for the railroad company, the plaintiff in error, but defendant in court below, that the action could not be maintained on the common counts, and that the parties should have declared specially, on the special contract, and aver performance, or failure to perform by the act of the other party.
But it is very manifest that this could not have been done, for the contract had not been performed by the plaintiff in error, neither had it been prevented performing it by the other party. And if no remedy could be had on the common counts, then the parties doing the work were without remedy altogether, notwithstanding the work had been done [116]*116and continued at the request of tlie plaintiff in error, and was useful to and appropriated by the said company. The law is correctly stated by Mr. Greenleaf in Ms work on Evidence, vol. 2, sec, 304, where he deduces from the authorities three general ndes:
1. So long as the contract continues executory the plaintiff must declare specially; but when it has been executed on his part, and nothing remains but the payment of the price in money, by the defendant, which is nothing more than the law would imply against him, the plaintiff'may declare generally, using the common counts, or may declare specialty on the original contract, at Ms election.
2. Where the contract, though partly performed, has been abandoned by mutual consent, the plaintiff may resort to the common counts alone for remuneration for what he has done under the special agreement,
3. When it appears that what was clone by the plaintiff', was done under a special agreement, but not in the stipulated time or manner, and yet was beneficial to the defendant and has been accepted and enjoyed by him; here the plaintiff' cannot recover upon the contract from which he has departed, yet he may recover upon the common counts for the reasonable value of the benefit which, upon the whole, the defendant has derived from what he has done.
I think it clear, therefore, that the plaintiffs in the court below, might well, in the case supposed in the defendant’s first bill of exceptions, have sustained their action upon the common counts. Also Newman vs. McGregor, 5 Hammond, 349; Baltimore & Ohio R. R. Co. vs. Polly Woods & Co., and same plaintiff vs. Lafferty, 14 Gratt.
Again, the defendant in the conrt below asked the court to give to the jury nine instructions propounding propositions of law affecting the case, as it claimed, all of which the court gave, except the two numbered 6 and 7, which the court refused to give, to which refusal the defendant excepted, and the same ate here assigned as errors. Said 6th instruction,- diveste'd o'f its circumlocution, propounds simply and substantially this proposition, that, the plaintiffs [117]*117below could not recover on the common counts for the work and labor done under the circumstances and as stated in the said first bill of exceptions, even though the jury should believe that the estimates of the work made by the engineers of the company were fraudulent.
It is based upon the assumption that the engineers’ estimates are conclusive upon the plaintiffs below, however fraudulent they may be, and that the question of fraud cannot be tried by the jury in an action at law, but that, a court of equity alone is competent to investigate the subject of fraud.
The first objection to this instruction is, that it is inconsistent with the third instruction asked by the defendant below and so given by the court. This third instruction told the jury, in effect, that they might find for the plaintiff's below, if the engineers’ estimates were fraudulent; but this sixth instruction says, in effect, that the jury may not find for the plaintiffs below, notwithstanding the said estimates were fraudulent.
A party ought not to be heard to complain that the court would not stultify itself, by giving at his instance, instructions, which 'contradicted each other, and thus confuse, rather than enlighten the jury upon the law in the case. It is certainly a reprehensible practice and condemned by tbe ease of Lazzell vs. Maple, 1 W. Va.
But suppose the said third instruction had neither been asked by the defendant below, nor given by tbe court, the question would still recur: was the law correctly propounded in the said sixth instruction? If not. it was rightly refused, and therefore, the refusal, no just cause of complaint. This sixth instruction proceeds upon the hypothesis, that the estimates of the engineers are, in nature and effect, awards of arbitrators; and as awards may not be questioned for fraud, save in a court of equity, so neither can these estimates of the engineers be otherwise dealt with. But the analogy between them is not complete. Baltimore & Ohio R. R. Co. vs. Polly Woods & Co., 14 Gratt., 463. The reason for investigating the fraud before a jury, [118]*118is as strong as before the chancellor, and the former is no less competent than the latter to determine it. It saves circuity of action, avoids delay, and lessens the expense, and whether in one forum or the other the evidence to sustain the charge of actual, not constructive, fraud, must be the same, in substance and effect. 16 Penn. State Rep. is authority express upon the point and is strongly corroborated by the opinion of the court delivered by judge Moncure in the case of the Baltimore Ohio R. R. Co. vs. Polly Woods & Co., 14 Gratt., 463; 9 Peters, 319; 11 Gill & John., 58; 27 Vermont, 673.
I think, therefore, that there was no error in refusing the said sixth instruction.
The said seventh instruction propounds this proposition: that the work and labor sued for, were done under the written contract, no recovery could be had on the common counts, whether any final estimate thereof had been made by the company’s engineers or not.
It is based on the assumption before considered and disapproved, that no recovery can be had for work done under a special contract unless the contract be specially declared on.
Free access — add to your briefcase to read the full text and ask questions with AI
Brown, President.
Several points are made for the determination of the court. And 1st, "Whether an action can be maintained on the common counts in assumpsit for work and labor, care and diligence, done under the following circumstances, viz: the parties, plaintiffs and defendant, had entered into a special contract, by which the plaintiffs were to make sections 161 and 162 of defendants’ railroad, in a special manner, under the supervision and control of the defendants’ engineers, to be completed by a specified time and at a specified price; estimates thereof to be made by said engineers, and acquittances executed by plaintiffs before payment. Much of the work was done under the contract and the road partly finished and partly paid for, but the plaintiffs failing to complete the same in the time specified, they continued the work with the consent of the defendant, until the same was completed, or accepted as completed by the company’s engineers having the supervision and control thereof, and final estimates made and rendered.
The declaration contained no special count on the special contract, but the common counts only. And it was objected for the railroad company, the plaintiff in error, but defendant in court below, that the action could not be maintained on the common counts, and that the parties should have declared specially, on the special contract, and aver performance, or failure to perform by the act of the other party.
But it is very manifest that this could not have been done, for the contract had not been performed by the plaintiff in error, neither had it been prevented performing it by the other party. And if no remedy could be had on the common counts, then the parties doing the work were without remedy altogether, notwithstanding the work had been done [116]*116and continued at the request of tlie plaintiff in error, and was useful to and appropriated by the said company. The law is correctly stated by Mr. Greenleaf in Ms work on Evidence, vol. 2, sec, 304, where he deduces from the authorities three general ndes:
1. So long as the contract continues executory the plaintiff must declare specially; but when it has been executed on his part, and nothing remains but the payment of the price in money, by the defendant, which is nothing more than the law would imply against him, the plaintiff'may declare generally, using the common counts, or may declare specialty on the original contract, at Ms election.
2. Where the contract, though partly performed, has been abandoned by mutual consent, the plaintiff may resort to the common counts alone for remuneration for what he has done under the special agreement,
3. When it appears that what was clone by the plaintiff', was done under a special agreement, but not in the stipulated time or manner, and yet was beneficial to the defendant and has been accepted and enjoyed by him; here the plaintiff' cannot recover upon the contract from which he has departed, yet he may recover upon the common counts for the reasonable value of the benefit which, upon the whole, the defendant has derived from what he has done.
I think it clear, therefore, that the plaintiffs in the court below, might well, in the case supposed in the defendant’s first bill of exceptions, have sustained their action upon the common counts. Also Newman vs. McGregor, 5 Hammond, 349; Baltimore & Ohio R. R. Co. vs. Polly Woods & Co., and same plaintiff vs. Lafferty, 14 Gratt.
Again, the defendant in the conrt below asked the court to give to the jury nine instructions propounding propositions of law affecting the case, as it claimed, all of which the court gave, except the two numbered 6 and 7, which the court refused to give, to which refusal the defendant excepted, and the same ate here assigned as errors. Said 6th instruction,- diveste'd o'f its circumlocution, propounds simply and substantially this proposition, that, the plaintiffs [117]*117below could not recover on the common counts for the work and labor done under the circumstances and as stated in the said first bill of exceptions, even though the jury should believe that the estimates of the work made by the engineers of the company were fraudulent.
It is based upon the assumption that the engineers’ estimates are conclusive upon the plaintiffs below, however fraudulent they may be, and that the question of fraud cannot be tried by the jury in an action at law, but that, a court of equity alone is competent to investigate the subject of fraud.
The first objection to this instruction is, that it is inconsistent with the third instruction asked by the defendant below and so given by the court. This third instruction told the jury, in effect, that they might find for the plaintiff's below, if the engineers’ estimates were fraudulent; but this sixth instruction says, in effect, that the jury may not find for the plaintiffs below, notwithstanding the said estimates were fraudulent.
A party ought not to be heard to complain that the court would not stultify itself, by giving at his instance, instructions, which 'contradicted each other, and thus confuse, rather than enlighten the jury upon the law in the case. It is certainly a reprehensible practice and condemned by tbe ease of Lazzell vs. Maple, 1 W. Va.
But suppose the said third instruction had neither been asked by the defendant below, nor given by tbe court, the question would still recur: was the law correctly propounded in the said sixth instruction? If not. it was rightly refused, and therefore, the refusal, no just cause of complaint. This sixth instruction proceeds upon the hypothesis, that the estimates of the engineers are, in nature and effect, awards of arbitrators; and as awards may not be questioned for fraud, save in a court of equity, so neither can these estimates of the engineers be otherwise dealt with. But the analogy between them is not complete. Baltimore & Ohio R. R. Co. vs. Polly Woods & Co., 14 Gratt., 463. The reason for investigating the fraud before a jury, [118]*118is as strong as before the chancellor, and the former is no less competent than the latter to determine it. It saves circuity of action, avoids delay, and lessens the expense, and whether in one forum or the other the evidence to sustain the charge of actual, not constructive, fraud, must be the same, in substance and effect. 16 Penn. State Rep. is authority express upon the point and is strongly corroborated by the opinion of the court delivered by judge Moncure in the case of the Baltimore Ohio R. R. Co. vs. Polly Woods & Co., 14 Gratt., 463; 9 Peters, 319; 11 Gill & John., 58; 27 Vermont, 673.
I think, therefore, that there was no error in refusing the said sixth instruction.
The said seventh instruction propounds this proposition: that the work and labor sued for, were done under the written contract, no recovery could be had on the common counts, whether any final estimate thereof had been made by the company’s engineers or not.
It is based on the assumption before considered and disapproved, that no recovery can be had for work done under a special contract unless the contract be specially declared on. It is objectionable also because the view which it presented, viz, that if the work was done under a written contract, the terms of the contract must be complied with before a recovery could be had, had been given to the jury, at the defendant’s instance in each of the five instructions, which preceeded it, and it was not an error in the court to refuse to repeat it again. But it was also objectionable in not going far enough to avoid ambiguity and was thereby calculated to confuse and mislead the jury. Had this instruction, by its terms, been confined to work done under a written contract, which was still open and subsisting, it would not have been obnoxious to this objection of uncertainty, and in such case;, if the contract made any particular thing a condition precedent, no action could be maintained until the condition had been performed. But this instruction is based on the single averment that the work was done under a written contract, leaving it wholly uncertain whether the [119]*119contract was executory or executed, whether it was still open and subsisting, or whether, as the evidence stated in the bill of exceptions tended to show, that the contract had been completed, or rescinded; or whether the work, though done under the contract, not in accordance with its provisions, and yet being beneficial to the defendant had been accepted and appropriated; in which latter event no estimates of the company’s engineers could be required as a condition precedent, to enable the plaintiffs to recover, any more than it would require a special count on the special contract, instead of the common counts.
Again, this seventh instruction is almost identical with the first instruction in the ease of Baltimore Ohio R. R. Co. vs. Polly Woods & Co., 14 Gratt., 447, and also with the first instruction asked by the same company against Laffertys on a former appeal in this very case, 14 Gratt., 478, but the court below refused to give them, and the refusal was excepted to, and the court of appeals of Virginia held that the court below did not err in such refusal.
I think, therefore, that the court below was warranted in _ refusing to give the said seventh instruction also.
The next question to be considered grows out of the refusal of the court to set aside the verdict and award the defendant a new trial. It is claimed for the defendant below, that a new trial should have been granted on two grounds: 1st, for misdirection by the court, and 2nd, because the verdict is contrary to the evidence.
The first ground has been in effect disposed of, in considering the objections to the sixth and seventh instructions, and need not be repeated in this connection. Upon the second ground it may be remarked, that as respects the amount ascertained by the verdict, there is a conflict of evidence and this court will not stop to inquire which preponderates or which set of witnesses is the most credible; that was peculiarly the province of the jury. But it is maintained for the plaintiff1 in error, that the verdict can only be sustained upon the hypothesis of fraud in the company’s engineers in making out the estimates of the work done, and that there [120]*120is no evidence of such fraud. And on this point the court below certifies in the second bill of exceptions briefly and substantially that there was no evidence of fraud in said final estimates, other than such as was to be deduced from the discrepancy between the two final estimates by the engineer, Frost, and the differences in amount between the said Frost’s estimates and those made by the engineers examined by the plaintiffs below. The court also certifies that the amount of work done, would, at the contract price, exceed the amount estimated and paid to the plaintiff below, during the progress of the work and at its completion, by more than the amount of the verdict, which was for 12,417 dollars and 78 cents. The work done was excavation and removal of earth, loose rock .and solid rock, and at prices specified per cubic yard. And an approximation to the amount of work thus done is easily ascertained, so far as to show whether the discrepancy was small o-r great, in other words whether it was such as might be accounted for by reason of errors and mistakes in the measurement or calculations, which are always liable to enter into estimates of like character, or whether the discrepancy was great, the error so glaring as to preclude under the circumstances, the idea of errors of ignorance, inadvertence or mistake, and which conld only he rationally accounted for on the ground of a corrupt-motive in the local engineers malting the estimates, with the intent to defraud the plaintiffs below.
"When the verdict is viewed in tlie light of the instructions, and the facts as certified by the court, it is manifest that the jury came to the conclusion that the said estimates of the company’s engineers were fraudulent and so based their verdict upon such conclusion. It is equally clear that, that conclusion was a deduction from the facts and circumstances’ proved in the cause, potent among which, were the discrepancies aforesaid.
It is equally clear from the court’s certificate of the fact that the mind of the judge, who presided at the trial, was influenced by the same considerations to refuse to set aside the verdict.
[121]*121The glaring discrepancy also between the estimate of the engineer, Frost, for the piece of county road made by the plaintiffs, viz, 430 dollars and 88 cents, and the actual cost, viz, 1,700 dollars and upwards, is another circumstance of much weight in considering this subject.
These great and extraordinary discrepancies tested by calculations based on the facts in the cause, exhibit results, which it is difficult to reconcile with the idea of honest errors or casual mistakes. As the estimates of the local engineer, were carried into the estimates of the division engineer and his again into the final estimate of the principal engineer, then, however honest the division and principal engineers, and innocent of any knowledge of the errors and taint of the preceding estimates, yet the final estimate would, nevertheless, be equally obnoxious, as the one on which it was based.
The question is whether upon the whole ease the verdict is contrary to the evidence and should therefore be set aside; nor is the fact to be overlooked that this is the third verdict for about the same amount that has been rendered in this cause.
Upon a careful consideration of the case and review of' the authorities on the subject of new trials, I am satisfied that this is not a case in which the appellate court would be justified in disturbing the verdict of the jury.
From the reasons above stated, I am of opinion that tha judgment of the circuit court of Brooke should be affirmed* with costs to the defendants in error.
The other judges concurred with the President,
Judgment AppiRMed,