Worthington v. Plymouth County Railroad

Barker, J. The ruling that no suit could be commenced and no recovery be had upon the written contract until the completion of the railroad, or, if the road was not built, until the defendant’s charter expired, was properly refused. The plaintiff agreed to do all the engineering work required in laying out, locating, and determining the permanent location of the railroad, and in the preparation of plans required for the location, and also to do all engineering work and superintendence required to lay out, build, and construct the road-bed, track sidings, bridges, stations, platforms, and other work provided for. But his compensation for the work and plans required in making the location was fixed at the sum of three thousand dollars, and the defendant agreed to pay that sum by paying each month such a proportion thereof as the work done by the plaintiff should bear to the whole amount of work to be done, until the whole work of location should be finished and the whole sum paid, while his compensation for the engineering work and superintendence required in the work of construction was to be a sum equal to six percent of the amount of work done under his supervision, and was to be paid monthly upon the amount of work so done during the previous month. By the terms of the contract itself the three thousand dollars was wholly due, and should have been paid when the plaintiff finished the work required in fixing the location. The exception to the ruling given upon this branch of the case must also be overruled. It stated correctly the substance and legal effect of the contract, so far as the compensation of the plaintiff for his work in locating the railroad was concerned, and there being no controversy that the work had been seasonably [478] done by the plaintiff, it was correct to instruct the jury that, if the defendant agreed by the contract to pay the plaintiff three thousand dollars for the work, he was entitled to recover it in the action. The other exception is to the exclusion of evidence. The first and second counts were for breach of the contract. In the third count the plaintiff sought to recover for certain work done at the defendant’s request, outside of the written contract. One of the defences to this count was, that, if the services were performed they were performed gratuitously, without intention on the part of the plaintiff of charging for them, and without expectation on the part of the defendant of paying for them. This count was submitted to the jury, and a recovery upon it is included in the verdict. The president, being called as a witness for the defendant, was asked whether before entering into the contract he had any conversation with the plaintiff as to the financial standing of the corporation, and whether he informed the plaintiff as to its financial standing. The question was excluded, the defendant’s counsel stating that he intended to prove that the plaintiff was informed of the financial condition of the corporation before and when the services charged in certain items of the third count were performed, and as applying to the defence that if the services were performed they were gratuitous. The defendant now contends that the evidence was admissible upon the counts upon the written contract, and upon the third count. Upon the first part of the contention it would be enough to say that the bill of exceptions shows that the evidence was offered only as affecting certain specified items of the account annexed to the third count. Besides this, as applied to the counts upon the written contract, the evidence was inadmissible as tending to contradict the writing, which in explicit terms promised payment for the services to be rendered under it. We are of opinion that the evidence was properly excluded. If we assume that at the time to which the testimony offered was directed the corporation had no assets, that state of facts is consistent with the expectation that services rendered to the corporation should be paid for. It is not to be presumed that work which is not ordinarily bestowed in charity is gratuitously per [479] formed, for either natural persons or for corporations, merely because at the time the recipient has no pecuniary resources. Still less does such a presumption obtain when the work is done for a quasi public corporation, empowered to construct for the pecuniary gain of its members a railroad for which a public exigency must have been found to exist. See Bliss v. Johnson, 162 Mass. 323; Clark v. Fletcher, 1 Allen, 53, 56; Burke v. Kaley, 138 Mass. 464. Exceptions overruled.