Williams v. Chicago, Santa Fe & California Railway Co.

54 S.W. 689, 153 Mo. 487, 1900 Mo. LEXIS 134
CourtSupreme Court of Missouri
DecidedJanuary 23, 1900
StatusPublished
Cited by40 cases

This text of 54 S.W. 689 (Williams v. Chicago, Santa Fe & California Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Chicago, Santa Fe & California Railway Co., 54 S.W. 689, 153 Mo. 487, 1900 Mo. LEXIS 134 (Mo. 1900).

Opinion

GANTT, P. J.

This is an appeal by plaintiffs from the judgment of the circuit court of Macon county. This is the second appeal in this cause. The first is reported in 112 Mo. 463.

The action grows out of a contract to construct the roadbed and prepare the same for the superstructure upon that portion of defendant’s road described as sections J5 to 94 inclusive, in division 2, and sections 95 to 114'inclusive, in division 3, commencing about .three miles west of Grand river, in Oarroll county, and terminating at the east end of section 114 in Macon county.

The right of lien was settled on the former appeal.

After the reversal of the former judgment, the plaintiffs amended their petition at the April term, 1893,* of the Macon [490]*490circuit court. After setting out the contract in full, together with the-specifications, plaintiffs allege that between the 7th day of February, 1887, and the 19th day of January, 1888, on which last day the last work was done and materials furnished, plaintiffs did and performed all the work and labor and furnished all the materials required of them by the terms of said contract, and also furnished materials and did extra work under the terms of said contract in sectionll5 indivisión four of said railway in the counties of Chariton, Linn and" Macon, amounting in all to the sum of $679,206.68, setting out the various items in detail, and admitted payments and credits to the amount of $490,894.94. There were also allegations as to the rights and liabilities of the other defendants, and the filing and recording of the lien.

Plaintiffs then proceeded to assign as breaches' of this contract that defendants’ engineers fraudulently and willfully misconstrued the contract and did not classify and measure 'said work from time to time as' required by the contract, but made only approximated or percentage estimates, calculations and measurements, with intent to defraud plaintiffs - out of their just rights and benefit the railroad company. It is then specified under nine different specifications wherein the measurements and estimates were fraudulent. Plaintiffs further averred thalt the engineers of defendants did not at the completion of the work certify as required by the contract the completion of the work and labor, and the furnishing of said material, although often requested, and although a reasonable time had elapsed after the completion of the work before the commencement of this suit, but fraudulently neglected to do so in order to defeat plaintiffs’ right to the lien conferred by law for the balance due them.

The defendants’ answer consisted first, of a general denial; and then proceeded as follows:

“2. Defendants further answering say that during the progress of construction by plaintiffs of that part of defend[491]*491ants’ railroad covered by their contract, they were furnished from month to month with estimates by the defendants’ chief engineer and his assistants, showing the quantities and amounts of the several kinds of work done by the said plaintiffs under 'their said contract, and that they were fully acquainted with the basis upon which said estimates were made and the methods 'by which the results therein contained and set forth were arrived at; that with such knowledge the said plaintiffs acquiesced in said estimates and submitted to the same and expressed their satisfaction therewith as to all that part of the work covered by their contract comprehended in division two thereof, extending from section seventy-five to section ninety-four, both inclusive; that upon the completion of plaintiffs’ said work under their contract defendants’ chief engineer and his assistants made final estimates of the plaintiffs’ work upon said division two embracing the aggregate of all of said monthly estimates and more: that by reason of the premises, plaintiffs waived all right to complain of the quantities and amounts of the several kinds of work allowed to them on said division two in said final estimates, and ought not to be heard to claim or permitted to recover any different or additional amounts than as shown therein, and are estopped so to do.
“3. Defendants further answering say that upon the completion by plaintiffs of the work done by them under their contract, and before the making and return of the final estimates by defendants’ chief engineer and his assistants, as provided by said contract, defendants’ said chief engineer, after an oral interview with plaintiffs, in which they complained of the estimates which had been made, requested them to submit to him in writing a full statement of their claim for increased allowances, for consideration by him in making up the final estimates; that, thereafter, in compliance with said request, on the 24th day of December, 1887, and on the 26th day of January, 1888, plaintiffs submitted the following statements of all of their claims for increased allowances of [492]*492loose and solid rock and of haul:” [Here follows the itemized claim of plaintiffs for increased allowances on the various stations of their work and objections to and complaints against the classification of material handled by plaintiffs, followed by the following allegation:]
“That said defendants’ chief engineer received said statements and duly considered the same in making up said final estimates, and gave plaintiffs certain additional allowances on account thereof, as shown therein; that plaintiffs thereby waived all claim to any additional allowances upon their work except as shown in said statements, and ought' not now to be heard to assert any other or different claim, or to be permitted to recover for any alleged insufficient estimates upon any other portion of their said work, and are estopped so to do. And defendants also say that their chief engineer having-passed in good faith upon the claims of plaintiffs, as exhibited in said statements, and having included in the final estimates the results of his judgment thereon, they are estopped to claim or recover any other or greater sum than as shown by said-estimates.
“4. Defendants further answering say that after the completion by plaintiffs of the work done by them under their contract, and after the submission of their written claims for increased allowances, they were informed by defendants’ chief engineer that the monthly estimates for the month of February, 1888, then soon to be returned would be substantially the same as the final estimates; that said February estimates were soon afterwards returned and were substantially the same as the final estimates, being in many cases identical, and in others the final showing- increased allowances in favor of plaintiffs; that plaintiffs with full knowledge of the character and contents of said February estimates accepted the same and received and receipted for the money due them thereunder; and thereby waived all right to [493]*493complain thereof, or of the said final estimates, which were afterwards returned and are substantially the same as the February estimates, and are estopped to claim any other or additional sum than as shown to be due them by and under said final estimates.'
“Wherefore, defendants pray judgment that they be hence dismissed with their costs.”

Plaintiffs’ .reply denied each and every allegation of new matter contained in the answer. At the September term, 1893, “by agreement of counsel of respective parties in open court the above cause was referred to F. L.

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Bluebook (online)
54 S.W. 689, 153 Mo. 487, 1900 Mo. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-chicago-santa-fe-california-railway-co-mo-1900.