Thayer v. Vermont Central Railroad

By the Court. The item in controversy in this case, is for sixty-two days work of three men and six horses and carts, at [446] $7,50 per day, $465,00. This is claimed, as extra haul of dirt from one section of defendants road, which plaintiff had contracted with S. F. Belknap to build, to another section, by direction of one Newell, an assistant engineer of the company, under the assurance that the company would pay the plaintiff for it. It is claimed by the defendants, that it does not appear, that plaintiff was not bound to perform this work to finish his, own cantract, and that he has not really, had pay for it. But the auditor spoke of it as “ extra haul,” and says it was beneficial to defendants, and that the same amount of dirt must have been borrowed from elsewhere, had it not been for this extra haul, and treats the account as reasonable in amount. So that we can scarcely regard it, as the mere performance of his own contract with Belknap. If it appeared that plaintiff had charged his entire time, while employed in hauling dirt upon section 19, some deduction should undoubtedly be made, since the plaintiff would get pay for removing the dirt, by the estimate of his excavation, and , so should only be allowed what it cost him to remove the dirt to section 19, more than it would, to dispose of it upon number 18, by the ordinary embankments. But nothing of this kind appears, and we must regard it all as extra haul, and it was beneficial to defendants and plaintiff has not been paid, and should be, by-some one. The question is, then, can he recover it of defendants. He had no general contract with defendants. Their contract, for all this work, was with Belknap. And the auditor expressly reports, “ All the engineers of the company had authority to direct the removal of earth from one section to another, when needed, and by the contract between the company and Belknap, he was bound to move earth from one section to another/hit no engineer had power to hind the company, hy any contract for grading or removing earth” This labor, then, so far as the company was concerned, comes within this contract with Belknap; he was bound to perform it, if required so to do by the engineer, and, of course, could obtain compensation under his contract. But notwithstanding this, they might employ some one else to do it, or they might adopt the act of some one else, doing it. This could not be claimed, upon the mere ground that it was beneficial to defendants. One cannot compel another to become [447] his debtor, even by doing him good. And if this were merely the performance of Belknap’s contract, it would really enure to Ms benefit. There must be shown something, which amounts to a consent of the company, to have the plaintiff do it upon their credit. The fact, that the president and other officers of the company, passed along while the work was doing, “ and might have known that plaintiff was doing it, and it was beneficial, and made no objection,” could amount to but little, unless knowledge was brought home to them, that plaintiff was doing it upon the credit of the company. They would naturally suppose he was doing it for Belknap, or that in some way, it was being done under Belknap’s contract with the company, so far as they were concerned, as they had made no other contract. They would scarcely be required, to inquire into the terms of the contract, between Belknap and his workmen, or sub-contractors, and no inference could fairly be made against them, as to having made a new contract with some third person, upon that ground, as it seems to us. And it seems to us equally obvious, that Newell, could not bind the company by any such contract. If he could, so could all the engineers, and the defendants position would be rendered somewhat perilous, and the restrictions in their written contracts would be of little avail. The auditor, it seems to us, entirely disposes of this; for he not only says, that this engineer “Newell had no express authority to make such a contract,” but as has been before stated, that “ no engineer had power to bind the company, by any contract for grading, or removing earth.” This is too explicit to be evaded, or overcome, unless wev can see from the contract, or the relation of the engineers to the company, that the auditor has misconceived their power. As between the company and their contractors, the contract seems to us to have expressly denied the power of the engineers, or the chief engineer, to bind the company for extra work, except in a particular mode, by writing, and then, the claim to be presented and adjusted, in a prescribed time and mode. And there is surely nothing in the general duties of an engineer, that would authorise him to employ others to do the work on the road, which by express contract belonged to the contractor to do. If he could do this, he might have rescinded the entire contract with Belknap, and let the work to others. [448] For when it is claimed to set up an independent contract, made with a third person, hy a sub-engineer, to do work let to the general contractor with the company, it is impossible to limit it to $500. The principle of the thing is the same, when it is extended to $5,000. The case of these defendants v. Baxter, 22 Vt., 365, cannot aid the plaintiff. That rests upon the nature of the right exercised by Belknap, and that he could only have exercised it, hy the authority conferred hy the legislature, upon the company. Judgment affirmed.