Irwin v. Smith

Scott, J. — The appellants sued the appellees for a balance due for work and labor performed in constructing the grade for the Indianapolis, Bloomington and Western Railway. Issues and trial in the court below at special term resulted in a verdict for'the appellants in the sum of $11,549.28. The appellees moved for a new trial. The motion was overruled and exception reserved. Judgment was rendered at special term, and the appellees appealed to general term, where the judgment of special term was reversed, and from this judgment of reversal this appeal is prosecuted. The judgment of general term may be found in 1 Wilson Rep. •544. The only questions presented to this court are those which — 483 — arise out of the overruling of the motion for a new trial. In the motion for a new trial the appellees assigned the following causes: 1. The court erred in overruling defendants’ demurrer to plaintiffs’ complaint; 2. The verdict and special findings are not sustained by sufficient evidence; 3. The verdict and special findings are contrary to the evidence; 4. The verdict and special findings are contrary to law; 5. For error of law occurring at the trial, in this, to wit: (1.) The court erred in refusing to permit the defendants to introduce competent, relevant and material evidence offered by defendants; (2.) The court erred in permitting the plaintiffs, over the objection and exception of defendants, to introduce incompetent, irrelevant, immaterial and illegal evidence to the jury; (3.) The court erred in giving the jury the instructions given by the court on its own motion, which instructions were at the time excepted to by defendants ; (4.) The court erred in modifying and changing certain instructions asked by the defendants, to which modifications and changes of said instructions the defendants at the time excepted, as is shown by bill of exceptions ; (5.) The court ei'red in refusing to give instructions asked by the defendants to be given to. the jury, the refusal to give which said instructions was at the time excepted to by defendants (6.) The court erred in giving contradictory instructions to the jury. The overruling of a demurrer to a complaint is not a proper cause for a new trial. The fifth cause for a new trial, together with the various subdivisions, presents no question for this court, nor did it — 484 — present any question to the coult below, either at special or general term. Waggoner v. Liston, 37 Ind. 357; Wright v. Potter, 38 Ind. 61; Eden v. Lingenfelter, 39 Ind. 19; Harding v. Whitney, 40 Ind. 379; Alley v. Gavin, 40 Ind. 446; Marley v. Noblett, 42 Ind. 85; Musselman v. Musselman, 44 Ind. 106; Douglass v. Blankenship, 50 Ind. 160; Rogers v. Rogers, 46 Ind. 1; Grant v. Westfall, 57 Ind. 121; Alexander v. The North Western Christian University, 57 Ind. 466; Tyler v. Bowlus, 54 Ind. 333; Watt v. DeHaven, 55 Ind. 128; Vawter v. Gilliland, 55 Ind. 278; Wilson v. Vance, 55 Ind. 584; Patterson v. The Indianapolis and Brownsburgh Plank Road Co., 56 Ind. 20; Schlicht v. The State, 56 Ind. 173. The evidence is in the record, and the causes assigned for a new trial were sufficient to present the question whether the verdict of the jury was right upon the evidence. The work was done in pursuance of a written contract, and the reversal or affirmance of the judgment depends upon the meaning and interpretation of this contract. We set out that portion of the contract which will present the ground on which the case must be decided: “Clearing and grubbing. “The ground set apart for the railroad is to be cleared to the boundary line of the company’s land, as the same may be designated by the engineer,” etc. “Grading. “The road-bed will be graded for a single track (except at points where sidings or turnouts maybe required), and will be generally 14 feet in width in embankments, and 20 feet in width in excavations, with slopes on the sides of one and one-half base to one foot perpendicular. * * * “All materials will be measured in excavation only, whether taken from cuts upon the line, or from ditches and — 485 — borrowing pits to form embankments; and no allowance of haul will be made, unless the materiál excavated is required to be taken beyond the limits of the section upon which it is found. * * “The party of the first part (the appellants) will graduate and carefully prepare in a good and workman-likd manner, for the reception of the superstructure on railways, all that part of the line of the'Indianapolis, Bloomington and Western Railway included in sections,” etc., “including the grubbing and clearing on all the above named sections,” etc., “in the manner and on the conditions hereinafter mentioned, and according to the specifications hereunto annexed. The earth shall be excavated and moved, and embankments raised, in such manner as to make a uniform and regular surface, coirforming to the inclination or level indicated by the level and field-notes of the said engineer; that the excavation shall be twenty (20) feet wide on the graduated line or surface of the road, with turnouts at such points .as the engineer shall direct, and a side drain of such slope, and ■dimensions as may be directed by the engineer, shall be formed on each side of the road ; that the. earth from the excavations shall form the embankments as far as the engineer of said railway shall direct, and the surplus earth shall be distributed so as to widen out the embankments uniformly, ■or formed into spoil banks at such places as the engineer of said railway shall direct, with evenness and regularity, with a suitable descent to carry off the water from the railroad ; and when directed by the engineer, convenient drains shall be constructed through the spoil banks to cany off the water. * * * ‘ ‘Where the excavations do not furnish materials sufficient to make the embankments, the deficiency shall be made up by widening the excavations uniformly, or by borrowing from such points as the engineer shall designate, which shall be estimated and allowed as excavation. * * * — 486 — “That excavations and embankments for road crossings: shall be made of such dimensions and form as shall be designated by the engineer, and estimated and paid for at the same price per yard as other work on these sections. * * “And the said party of the second part does hereby covenant and agree to pay to the said party of the first part, in manner hereinafter mentioned, for the work agreed by this contract to be done, as follows : “For earth excavation and grubbing and clearing, 15 cents per cubic yard ; and for embankments, including the grubbing and clearing, 24 cents per cubic yard,” etc. We think it clear from this contract that all excavations, whether from the widening of the cuts or from ditches or borrowing pits, must be treated precisely alike, and both must be estimated and allowed, if either the one or the other is ; for both kinds of excavation — that taken from widening the main road-bed, and that taken from borrowing pits rest upon the same words in the contract for estimation and allowance. That the earth taken from the widening of the main roadbed, and put into the embankment, was to be paid for at the rate of 39 cents per cubic yard, is conceded by counsel, and that it was so estimated, allowed and paid for is shown by the evidence and special findings of the jury; and as the excavations taken from borrowing pits were to have been estimated and allowed in the same way, and under the same clause of the contract, we are compelled to hold that the appellants were entitled to be paid for these excavations the same-price as if they had been taken from the widening of the cuts in the main line of the road. From the special findings of the jury, which, in our opinion, were entirely justified by the evidence, we are informed that the appellants, under their contract with appellees, excavated 235,645 cubic yards of earth; that 206,708 cubic yards were put into the embankment, which at 39 cents per — 487 — cubic yard, amount to the sum of $80,616.12 That the surplus excavation, 28,937 cubic yards, at 15 cents per cubic yard, ¿mounts to - $4,340.55 Add items conceded ----- 791.60 Total......$85,748.27 Deduct payments as found by the jury - 73,747.53 Balance ------ $12,000.74 Verdict ------- $11,549.28 It is the opinion of the court that the verdict is fully supported by the evidence, and that the court in general term erred in reversing the judgment at special term. The judgment of the general term is reversed, at the costs of appellees, with instructions to the court in general term to affirm the judgment at special term.