Opinion
December Term, 1897.
L. Laflin Kellogg, for the appellants.
Mortimer M. Menken, for the respondent Nally.
With respect to the items in dispute, we will first consider in their order those advanced by the plaintiffs. We have, first, the item for extra work in drilling holes in rock at a place where it is conceded drilling was unnecessary, but concerning which there is a conflict as as to whether the work was done by reason of the mistake of the plaintiffs or of the defendant Nally; second, the difference between the amount claimed and that allowed for use of derricks, as to which the evidence was also conflicting; and, third, the charge of twelve dollars for a new boom, which the plaintiffs say Nally never paid, but which he testified he did pay. As these presented clean-cut questions of fact, upon conflicting evidence which was in no sense preponderating, we see no reason to interfere with the decision reached by the judge below. For a similar reason we must sustain the conclusion reached as to one of the items allowed of the defendant's counterclaim. With respect to the earth filling, there was no question but that the number of loads allowed for, at twenty-five cents a load, was delivered, the conflict, however, arising as to whether there was a modification of the original agreement under which the plaintiffs were to pay such twenty-five cents, so as to permit them to have a free dump, provided they would furnish the labor for spreading the dirt. Such a modification of the contract is denied by Nally, and the court accepted his version.
There remain for consideration, however, two items of the defendant's counterclaim which, we think, were erroneously allowed. The first amounted to $938.68, for breaking up and disposing of large foundation stones. The defendant testified that he gave the plaintiff the privilege of putting in 400 yards of rock for foundation masonry, and that when about that amount had been delivered he notified one of the plaintiffs not to deliver any more stone; but that, though the latter promised to comply with the request, he thereafter continued until he had dumped over 2,000 yards of stone. This, the defendant states, he requested the plaintiffs to remove, which they promised, but afterwards refused to do; and that eventually the defendant had to break the stone up and haul it with teams, putting some of it behind the wall in place of earth filling, and in other places as directed by the engineers, at a cost to him of $849.68. To this the judge below added $59, presumably for interest, bringing the amount up to $938.68. According to the testimony of the city engineer, he directed Nally to clear up the rock; and it would, therefore, appear that the plaintiffs have been charged with the expense placed upon Nally by the city engineer of clearing the ground of stone. Upon the part of the plaintiffs there was a denial of any limitation as to the amount of stone that should be delivered. It also appeared that there were others, or, at least, one other contractor, who dumped stone, as he testified, along the line of the work. For the stone dumped by others the plaintiffs should not be held accountable. Nor do we know of any principle of law upon which the plaintiffs can be required to reimburse the defendant Nally for the cost to which he may have been put by the city engineer in removing from the ground the stone placed there by plaintiffs. This was not shown to be part of Nally's contract with the city; and the suggestion that, unless he did it, he could not receive the certificate, so as to obtain payment, was not a sufficient justification for doing it and then charging the plaintiffs with the cost thereof, because, if it was no part of his contract, he was entitled to his pay without complying with any such condition.
Apart, however, from this, the land upon which the stone was dumped belonged to the city and not to Nally; and, therefore, the acts of the plaintiffs in placing the stone there, if done without permission, was a trespass upon the city's property, for which the latter might have had a remedy over against the plaintiffs, but with which, so far as the record discloses, the defendant had no relation other than that he was engaged in doing the work specified in his contract with the city. This gave him no such relation to the property as to entitle him to obtain damages from persons who might trespass upon the land or injure it by dumping stone thereon, and certainly it did not entitle him to recover from the plaintiffs for stone dumped by other persons.
Equally without support is a similar item of $140, representing the wages of the city inspector for thirty-five days at four dollars a day, which was charged against the plaintiffs upon the testimony appearing that it took the defendant thirty-five days to clear away the material dumped by the plaintiffs along the line of his work and which the engineer told him it was necessary to remove before he would sign the certificate to obtain his pay from the city. What we have already said about the removing of the rock applies equally to this item. Unless the defendant Nally was under a contract obligation, or had such a relation to the property that he could insist upon recovering damages for what he alleges were the plaintiffs' wrongful acts, it should not be allowed him. As we have already pointed out that no such relation existed, and that no such obligation was imposed upon the defendant, this, like the previous item, must fall.
The judgment should, therefore, be modified by deducting from the amount allowed to the defendant Nally by the court below these two items, amounting to $1,078.68; the result of which will be a judgment in plaintiffs' favor of $6.10; neither party to have costs here or in the court below.
VAN BRUNT, P.J., WILLIAMS, PATTERSON and INGRAHAM, JJ., concurred.
Judgment modified as directed in opinion, without costs to either party.