916
FEDERAL REPORTER,
vol. 63.
benefit to the railroad 'oompany, in that it will increase its telegraphi:o facilities, especial'ly in case of accident to or other interrupti&n of the lines of theiWestern Union Company. In respect to water, if the companyhliS any to spare, I do not see that the furnishingof it to th()Be in need along its line can be objected to by any one,-certainly, not by one who has no interest therein. The furni:shing of water, under the circumstances appearing, is not in· consistent with any of the purposes for which the Atlantic & Pacifio Railroad Company was 'created; and, if those administering the property can earn something thereby for the owners of the property, there Is no good reason why they should not do so. An order will be en tere6 directing the receivers to afford the facilities asked for by the:petitidn, upon just compensation. i
== OHARLESTON, IOE MANUF'GCO. v. JOYOE.
(Cfi'cuit Court of Appellls, Fourth Circuit. No. 84.
October 2. 1894.)
1.
OONTRACT'J'OR'BoRING ARTESIAN WELL-CONSTRUCTION.
a.
Wheth,el'll.. l,2-inch artesian well is one which has a bore of 12 inches, or one wWcb, ll:t,ter being cased, has a fiow of 12 inches, depends on evidence. and is a question for the jury.
SAMm.
artesian well. it appeared that plaintiff sunk a well having a 12·fnch bore, with of defendant's under the supervision of Its 'vice .President and chief engineer, without any suggestion that the work was not being done in accordance with the contract. Held, that thejUl7,properly construed the contract·to mean is; well having a 12-inch :flow after being cased. SAMlll-RIlSCtSSION BY MUTUAL AGREElIlENT.
In an action against a corporation on a contract for boring a 12-inch
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The contract gave plainti1f the privilege of changing the size of the well to, 8lh thches, but reqUired him to carry a 10-inch hole to a dellth of 1,300 feet,if possible. When a depth of 1,016 feet was reached with a 10inch pipe; It waS impossible to drive it further with the 1,100-pound maul In use, was danger of the pipe's collapse ifit was driven further, and plainU«·, l)l'flPosed to use an 8¥.i-inch pipe. Sl1ch facts were stated to defendant's 'vice president and chief engineer, arid to its treasurer and manager,'tlie president being absent. These latter asked permission to use It mauLwaLghing 4,000 pounds at their own risk and continue with and agreed that if they spoiled the well it should be their 19t;1l;l' .};'lfintiff consented thereto, and while such ofllcerswere using the heavl ptatll the pipe collapsed. president was at a directors' meetingiit'tliecompany's office, near tlle well,'"While the 4.0oo-pound maul was beingmsed. and no objection waS J1lade by him. .Held, that it was not error to ,mbmit to the jury the question whether. the original contract was resci1J.ded when a depth of 1,016 feet was relj,Ched, and a new arrangement roMe by the company, through its agents, by which they undertook to complete the well. ,.. OF DAMAGES.
4..
work of any fi. SA)1:E.
agreement, It it was made, plaintiff was entitled, for to whatever sucJ:!work Was worth, and the cost In the absence of any definite contract as toprice. ' .' .' ·..... . .' .
In sucli case, plaintiff was entitledtO"cliarge the contract price for the work done up to the time the new contract was made.
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CHARLESTON ICE lIIANUF'G CO. 'V. JOYCE.
917
6. SAME-RESCISSION-INSTRUCTION.
'.rhere Wll8 evidence from which the jury might find that while there Wll8 no agreement to ,,,holly abandon, in the future prosecution of the work, the original contract, yet that defendant's officers assumed for it the responsibility of driving further than plaintifl' thought safe the 10-inch pipe, and that the subsequent collapse of the pipe was entirely due to such officers' action in so doing. Heidi, that it Wll8 proper to charge that in case the jury so found, and the collapse of the pipe rendered the performance of the contract impossible, it rescinded the contract.
Error to the Circuit Court of the United States for the District of South Carolina. This was an action by E. F. Joyce against the Charleston Ice Manufacturing Company to recover an amount claimed to be due him from defendant for drilling an artesian well. There was a verdict and judgment for plaintiff, and defendant brings error. AIfirmed. Samuel Lord, for plaintiff in error. J. P. K. Bryan, for defendant in error. Before GOFF, Circuit Judge, and HUGHES and SEYMOUR, District Judges. SEYMOUR, District Judge. This action was brought by defendant in error to recover the amount due to him from the plaintiff in error for drilling an artesian well. The work done was begun under a written contract containing the following provisions: "This agreement, made and executed in duplicate, this 19th day of November, 1889, by and between E. F. Joyce, of St. Augustine, Florida, party of the 1irst part, and the Charleston Ice Mfg. Co., of Charleston, S. C., party of the second part, witnesseth: That the said party of the first part, for and in consideration of the compensation hereinafter mentioned, has agreed, and by these presents does agree, to drill in a proper ,and workmanlike manner, for the said Charleston Ice Mfg. Co., at their works on Market street, Charleston, S. C., a twelve-inch (12-in.) artesian well, one thousand feet (1,000 f.) deep, and to continue this well, with a ten-inch (10-in.) bore, to the depth of three hundred feet (300 f.) further, the whole depth of the well to be thirteen hundred feet (1,300 f.), in such manner as may be necessary, on account of the .earth's formation, as will secm'e, if possible,. a ten-inch (10-in.) fiow of water from the last (30 f.) thirty feet of water-bearing strata next above a depth ,of thirteen hundred feet (1,300 f.) below the earth's surface, with the privilege of reducing the size of the well, if necessary, to eight and one-half inches (8% in.), but to carry a ten-inch hole to the depth of thirteen hundred feet (1,300 f.) if possible, with his machinery, and to case the well, if needed, to a depth of twelve hundred and seventy feet (1,270 f,) with standard wrought-iron drive pipe, and provide it proper steel shoes. The party of the first part to furnish all pipes, shoes, machinery, tools, and labor for said well. The party of the first part further agrees to begin work on said well just as soon as possible, i. e. said party of the first part has to complete two wells with one set of men and rig, and some work with another crew and rig, for the city of Savannah, Ga., all of which will be pushed. to completion 118 soon as possible, and, immediately after, work will be comme:nce.d on the well contracted for by this agreement; and no unnecessary delay shall occur either in .beginning or, prosecuting work on this well to as rapid a completio:n 118 Is compatible with safety and success, under a forfeiture of this contract. In consideration for the performance of this agreement the said Charleston Ice Mfg. party of the second part, has agreed, and by these pres-enis does agree, to pay to the said E. F. Joyce or his agent the sum of eight thousand hundred dollars, ($8;500), as foll4>ws,vlz.l Two thousand dol-
'FI:DJlRA.t.l REPORTER,:voh
63.
lars ($2,000) when the well Is six hundreq feet (600 f.) deep; twenty-five hundred dollars ($lMlOO), ,one :tbQus.and feet deep (1,000 f.), and four thpusand. dollars It is,ftniShed."
contract'<lefandantin error bored the well to the depth oti'1;016 feet;:0ommencing:with a somewhatlal'ger bore, and toa feet, he salik' "IX W'eI112 'mches,.In,,(\'ffl;llleter at the ,bottom to a dIstance from the surface of 1,016 feet as aforesaid. At this depth the outside the hole was: 12 inches. But, owing to the nature of the soil through which it passed, the necessity arose of casing the wel1,;Rlld"thwugh the Jiole, for its entire distance, was passed a dri;ve pipe· of, a'lil'inside:diameter of 10 inches. ,'l'hli!;tirst,erl'or which it is material to consider, alleged by plaintiffiP erllorj:arises, fr(i)m these' facts. ,Plaintiff ilt error's: second "request to charge" is as follows: '''l'hat the plaintiff cannot recover under the f1,rst contiaet because he did not perfOl:m his contract up to the boring l/-ndI dtilling of the ,well to the depth of 1,016 feet, as alleged in the complaint. bU'\; on the contrary had violated It, and Its bydlscoD:tinuing the 12-1nch pipe at the depth of 380 feet, and defendant Is entitled to recover back whlltever he has paid under that contract." ,
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t(,), this refusal is to raise the quesQonstr\lcthm ot:tb,e writtencontraot. The conwhich, if cased, theoasing of 12.,inches. In leaving;the meaning ,of the words, asto the Jury, we think the judge below committedIlo ,error;'The,words, ,artesian well," are not oonclt$ivelofLWhat wasthe 1'e9.uireq flow otwater through the r,,:f1.'Olnthe. <;gIitract tl;lat the well woUld need a 12-:inch artesian·, well is one which has a 12:ibches{or 'one which aftel'i i being ,cased has a flow' of 12: iaa/ <1lle8tion upo#,evidence. IIi this 'OW? the term., was dnven'Wlth the knowledge of plamtiif m errors agents, and. under the of its 'vice, president, and chief any suggestion done m, accordance 'wIth, the contract. that, the Under these QirCUlUstances the jury could have.'put no othet'oonstructionnponi·the,oontmct than they' did. 'rheobjection first tion When the, as the · OWing reached the depth of 1,016 feet, it was found, defendant in er1'ortends to show, impO$$iblet the ,to 10-inch'pipe C. L. was the agent ofJoyce, . (),Dtraetolli u.d defendant in errortrandhad charge of the work. was Isituated ,dnthe pl'emisesof 'the icetnanufae1uring'edrltpany,. inChatleston.' On ,the sapl.e' premises were the 8'"tm,' ',},1' Qfmeetin,g, .e dit;ectors',of the corporation. On; 'tPe 1890,tb.e well ba1Ving reached ,the depth above-
ICE MANUF'G CO. tl. JOYCE.
919
stated, it became impossible to drive the pipe further with the 1,100pound maul theretofore used. Besides Parker and Joyce's workmen, there were present the resident acting officers of the ice company, Mr. Lapham and Capt. Whitesides. Mr. Hart, the president, was a nonresident, only occasionally coming to Charleston. Lapham was treasurer and manager of the company. Whitesides was president of the company when the contract in litigation was made, and at the time under consideration was its vice president and chief engineer, and especially in charge of the construction of the well. Both were directors, and as Hart, the president, testified, when he (Hart) was absent from Oharleston, Mr. Lapham had charge of the affairs of the company. Hart was absent on the 3d of July. Finding that he could not drive the pipefurther, Parker proposed to avail himself of his right under the contract to proceed with an 8i--inch pipe, stating his apprehension that any further attempt to drive the IO-inch pipe would cause it to collapse. Mr. Lapham and Capt. Whitesides, for the company, asked permission to use a maul, weighing 4,000 pounds, at their own risk and expense, agreeing that if they spoiled the well it should be at their loss. Witness Parker says that he thereupon went with Lapham and Whitesides into the derrick, and in presence of the workmen told the latter that the ice company had asked permission to drive the IO-inch pipe at its risk and expense, and that he had consented that they might do so under these conditions; that from "now on" the work was at the risk and expense of the ice company, the understanding being that if they spoiled the pipe it was at the expense of the ice company, and not of Mr. Joyce. "1 said, 'Now you are working for the ice company.' Mr. Lapham said, 'Yes, the captain is going to drive the pipe!" Capt. Whitesides then took charge of the work. This testimony was controverted by the evidence introduced in behalf of plaintiff in error. The work was continuous until the 9th of July, when the 10-inch pipe collapsed at a place between 600 and 700 feet below the surface. As afterwards appeared, about 16 feet of the IO-inch pipe was crushed and driven together so as to stop up the well. This pipe was subsequently reamed and man-drilled by Joyce's men until it gave room for an 8-inch pipe, but the ragged inside edges of the lO-inch pipe interfered with the new one. A:t no time thereafter did the company's agent claim that it was possible to continue the work in accordance with the contract with an 8iinch pipe, and the only thing attempted was to use an 8-inch one. The endeavor to complete the well was continued with great expense for a considerable time, until the company refused to make the payments demanded by Joyce, and the work was abandoned; the well being, as the company's officers say, perfectly useless. Mr. Hart, the president of the ice company, was in Charleston in July, 1890,at the very time that Whitesides was driving the 10-inch pipe with the 4,OOO-pound maul, and when the pipe collapsed. He testifies that Lapham informed him that Capt. Whitesides was going to drive the pipe, but he says: "My consent was never asked. [ did not consent!' It thus appears that he did not object, and that his consent was not considered necessary. A meeting of the direc-
,920
.tors' of. the ,'washeJdin ,the office of the company on the 9th, Ha.lJt'bliling present. The work of driving t'hepipe was going on dnrlng holding of the meeting, under Whitet'!ides' direction. Hart ,himself, went and looked at the pipe, saw that it was broken, and 'asked Whitesides whether the well was. spoiled, to -which: the latter answered that it was not. Not a word, however, was said at the directors' meeting about the well. It must be evident from these facts that whatever was actually done in relation to the contr3ict was or might have been within the knowledge of the president and directors of the ice companY,and that the jury had evidence upon which they could find that a new arrangement had been made by the company through its agents" Whitesides and Lapham. The first exception to the charge cannot, therefore, be sustained. 'It is as follows "'The vital' questions in this case begin right here,-24th of June, 1890. When Capt. Whitesides undertook to drive the pipe, did he do this under and in consequence ot an arrangement whereby he, in behalf of the company, and by authority of the company, undertook the completion of the well, and rescinded the contract theretofore existing? Did this contract end this day, with the concurrence of bOth parties, and did each of them so understand? The solution of this question depends entirely upon the credibility you give to the testiJl19ny of the witpess.' To wbich charge the defendant then and there, and befqrethe jurY, .had withdrawn from the bar, did except, and prayed the court to sign and seal said exception, which was accordingly done."
The plaintiff in error excepts to the following instructions of the court: "If you come to the conclusion that Capt. Whitesides is resllOnsible for the collapse or the telescoping of the pipe, then the next question is, did this accident renderth,e ,performance of the contract Impassible? If it did, and If Capt. Whitesides caused it, then this rescinded the contract. If it was possipIe to finish contract,notwithstandihgthe accident, then the contract was not rescindeq,the plaintiff was still boUnd to perform it, and the defendant only becamellable for the expenses made necessary to rep.air'the damage. "If plaintift was in no fault at all, and if defendant broke this contract, and Whitesides,py authority', rescinded and· consented to allandon it, plaintiff is entitled to what his work was worth,Jess the sums already paid him on his lLCcount. FOr work done while' the,contract was stillexecutory,-that is, In force and notcompleted,-he couid chargethe contract price. For all work done when theCQntract was at un end, he can get what it was WOl-th, and the cost of the pipe by cost,-and the loss of his profit. Of this lastYQu must decide from the testimony, recollecting that the profit diminiShe&as, the Well deepened."
all
,Two theories were presented to the considelSation of the jury by these The in the order in which they were upon the jury, finding from the evidence that given, agreed to llbandon the original contract when lhe boring ha,q reacbed the depth of 1,016 feet and agreed that the work continued at .the expense of the ice company, withont any as to price., It i8 evident that in such case, as the learned judge correctly the contracwl' would be entitled, for li!uch,prospective work, to what that workmight be worth, and what,j;he;materials might cost him. As the exception taken is to the entireJnstructions,we,need not consider whether he was further anything forlos8 of profit. We are also ()f
CHARLESTOri .ICE MANUF'G
co.
17.' .rOYCE.
921
the opinion that he was entitled to charge the contract price in such case for the work already completed. Such must have been the intention of both parties, there being no evidence to the oontrary, and nothing to show that any new arrangement was contemplated with regard to the price of the work already done. That was provided for by the original contract, which was not affected by the new one, except with respect to the unfinished part of the work. The words, "if Whitesides, by authority, rescinded and' consented to abandon" the contract, were intended by the judge, and must have bten understood by the jury, to refer to its unfulfilled provisions. But there was another view of the case arising upon the evidence. The jury might find from the evidence that while there was no agr¢e· ment to wholly abandon, in the future proseeution of the work, the original contract, yet that Capt. Whitesides assumed for the com· pany the responsibility of driving, further than Parker thought safe, the 10-inch pipe, and that the subsequent collapse of the pipe was entirely due to. his action in so doing. In such case the judge in· structed the jury that if the collapse of the pipe rendered the per· formance of theoontract impossible this rescinded the contract. To this proposition of law plaintiff in error excepted upon the ground that the party in fault cannot by his own -action rescind a contract. This is undoubtedly true. Where one party to a contract renders its performance impossible, he has not the right to rescind it without the consent of the injured party, for he cannot be allowed to so deprive the other party of its benefits. But it is for the benefit of the party injured that the contract is kept alive. The injured party has his action for the breach of the contract. As the learned judge who tried this case explains in his elaborate opinion refusing a new trial, to the extent that the company's action rendered the perfol'lil1ance of the contract impossible, the company committed a brea<eh of the contract, and for the purposes of a suit founded on this breach the contract is treated as subsisting. In this case there can be no doubt but that up to the time that the well had been driven to the depth of a thousand feet the work had been done in accordance with the contract, and there is no reason why the plaintiff below should be deprived of what he had actually earned, by the fault or error of the other party. He is not seeking to recover for work which he had been prevented from performing, but for work actually done, and done under the contract. There is no reason for applying to this case the rule that ODe cannot sue under a contract which has been rescinded, but must sue for the value of the work done; and it can make no difference whether the suit on the first ground of action is for the amount due on the contract, or for work and labor done, to be measured by the contract rate. Butterfield v. Bryon, 153 Mass. 517, 27 N. E. 667. In U. S. v. Behan, 110 U. S. 346, 4: Sup. et. 81, Mr. Justice Bradley says: ..It is to be observed that when it is said in some of the books that when (me party puts an end to the contract the other party cannot sue on the contract, but must sue for the work actually done under it as upon a quantum meruit, this only means that he cannot sue the party in default upon the s.tipulations contained in the contract, for he himself has been prevel'lted from performing his own part of the contract upon which the stipulations depend.
922; between tthose'c1afulsunder a contractwblch reSult from a, it it, has
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CENTfu\Ij. 1.
P;HINIZY et at. v. AUGUSTA & K. R. CO. et at. " ·. ··"r' ': 0]' NIiJWYORK v. POR'f ROYAL & W. C. RY. CO. Court,D. South Carolina. November 5, 1894.)
JUDGM:EN't AG,HNilT;:RAILROAti-PERSONAI, II'iJURIES-PmORITIES.
Under AeonS. C. Feb. 9, 1882, declaring that a judgment against a railrQad !J0l.l;lpany f{)l,'ipersonal inj1,1ries shall take of a mortgage to secwe a will no! precej:lenceof a mortgage given before the act, but will of one given thereafter, ltnd before the injury for which judgment is obtained. '
2. RECEIVi!:nsL-PAYMEN'C " . Where, ,after the li>uch ju<lgment, a ,rel:!eiver: ot the road is appointed, to foreclose mortgages. he will not be directed to immediately pay the judgment,; the road bei,ng utterly insQ}vent at the .time othiSo.appointment, and ther!:! being other like claims, and the amount :available. therefor being uncertain.