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Minneapolis he was not under D. M. Edgerton, and at the time D. M. Edgerton had no control over him; that Edgerton had no more control over the work between Solomon City and Minneapolis than between Minneapolis and Beloit; and that there was no change in Edgerton's relations to the road, or in fact of his being along the line of the road, that he knew of, until the road was completed to Beloit."
"That, after the contract between the Solomon Railroad Company and Judge Usher was assigned to him, he proceeded to construct the road under it, and that he constructed the road on his own account from Solomon City to Minneapolis; that the construction stopped there for one year; that then Mr. Gould, and other directors and officers of the Kansas Pacific Railway Company, requested him to proceed with the construction of that road for their account, and they would furnish the materials, supplies, money, and everything; that he then went on to build from Minneapolis to Beloit; that this was done with men, material, and means furnished by the Kansas Pacific Railway Company, and by him so built under the directions of the officers of the road."
It is clearly established that after the Solomon road was constructed to Minneapolis the Kansas Pacific Railway Company operated the same in the name of the Solomon Railroad Company; and Edgerton testified
"That the Kansas Pacific charged the Solomon road for the use of motive power and rolling stock; that the Kansas Pacific paid all the expenses of operating the road, but credited the Solomon road with a division of the earnings."
And at one time in his testimony Edgerton stated
"That the work on the road was done in the name of the Solomon Railroad Company, but for the account of the Kansas Pacific Railway Company."
Upon the whole record, we think there was evidence before the jury to sustain the theory that while the Kansas Pacific furnished the men, money, materials, etc., for the building of the Solomon road, the president of the Solomon, Railroad Company was such an active agent in the execution of the work that, for all the purposes of this case, the railroad was built in the name of the Solomon Company; therefore, that the findings of the jury regarding the construction of the road, and the employment of the men thereon, cannot be said to be untrue or in conflict with the weight of evidence. If the Kansas Pacific acted for the Solomon Railroad Company, the findings may be easily harmonized. If possible, the findings of a jury should be so interpreted as to support the general verdict, rather than given an interpretation which would overturn and destroy it. Simpson v. Greeley, 8 Kan. 586; Railway Co. v. Holley, 30 Kan. 465; S. C. 1 Pac. Rep. 130; Railway Co. v. Ritz, 33 Kan. 404; S. C. 6 Pac. Rep. 533.
The following matters are not contradicted: First, the Solomon Railroad Company was organized in 1877, with D. M. Edgerton as president, and he continued to occupy that office until some time after the injury complained of; he was also vice-president of the
Kansas Pacific Railway Company; second, that the road was constructed from Solomon City to Minneapolis, and from Minneapolis beyond Delphos, while Edgerton was president and active in the execution of said work; third, that the Kansas Pacific Railway Company was the owner of 20,000 shares of stock in the Solomon road, which included all of the stock of the company outside of township and county subscriptions and a few shares issued for services; fourth, that Jones, at the time of his injuries, was at work upon the construction of the road between Minneapolis and Beloit; fifth, that, without any fault or negligence upon his part, the handles of the hand car which he was working broke, in consequence of which he fell out in front of the car, was run over, and injured; sixth, that the hand car, the handles of which broke with Jones on November 19, 1879, had a violent collision on the day before with another hand car; seventh, that Jones was not present on November 18, 1879, and knew nothing of the collision.
The principal disputed questions in the case upon the trial were— First. Were the injuries of Jones caused by the negligence of the employes or agents of any railroad? Second. Was the Solomon Railroad Company responsible for such injuries, if caused by negligence? All that was said by this court in Railroad Co. v. Jones, supra, as to the testimony warranting a finding of negligence applies here. Also much therein stated as to the liability of the Solomon Railroad Company is again applicable. It is somewhat difficult, from the record, to determine the exact relations which existed between the Kansas Pacific and the Solomon Railroad Company during the construction and operation of the Solomon road. As the Solomon Railroad Company was organized for the purpose of constructing a road from Solomon City to Beloit the work will be presumed, in the absence of any showing to the contrary, to have been done by it; and we think there was sufficient evidence before the jury authorizing them in holding that company responsible for the negligence of the employes or agents causing the injuries complained of. We have already referred to the findings of the jury that the Solomon road entered into a contract in writing with Judge Usher for the construction of its road, and that subsequently Judge Usher assigned this contract to D. M. Edgerton, who was president of the Solomon road, and nothing further need be said concerning that matter, except to state that D. M. Edgerton never made any written assignment of the Usher contract to the Kansas Pacific, and never entered into any formal writings with the company on his own account, or in the interest of the Solomon road, for the construction of the road to Beloit. If the Kansas Pacific was the sole contractor for the construction of the Solomon road from Minneapolis to Beloit, and as such contractor did construct that part of the road in its own name and upon its own account, it is exceedingly strange that James R. McClure, Esq., the legal adviser of Edgerton and the attorney of the Solomon Railroad Company, was wholly unacquainted with the arrangement. He tes
tified that the Solomon Railroad Company never made any other arrangement for the construction of the road than the one made with Judge Usher and subsequently assigned to Edgerton. He also stated that if any other arrangement had been made, as one of the directors and vice-president of the Solomon road he would have known about it. After the road was completed to Beloit, acting upon the assumption that Edgerton, and not the Kansas Pacific, had built the road, McClure commenced an action in this court in the name of the Solomon Railroad Company against the board of county commissioners of Mitchell county, for the benefit of Edgerton, to compel the board of commissioners of that county to issue the bonds voted to aid in the construction of the road. Taking into consideration all the facts and circumstances developed upon the trial, there is some force in the suggestion of the counsel of Jones "that the officers of the Kansas Pacific Company, being the owners of stock of the Solomon Railroad, went on and built it, not as independent contractors in the name of the Kansas Pacific, but as officers and stockholders of the Solomon Company, allowing one of their corporations to loan and furnish to the other materials and supplies, well knowing that they, being the officers of both companies, had it in their power to compel a settlement and restitution." In the case of Atchison, T. & S. F. R. Co. v. Davis, ante, 530, just decided, upon re-examination of the principal question involved in that case, we held that where the parent railroad company assists another railroad company in constructing its road, under the provisions of chapter 105, Laws 1873, such parent company is not responsible for the negligence or default of the auxiliary
Finally, it is urged that the damages of $5,750 are excessive. As the handles of the hand car broke while Jones was working the same he fell out backwards in front of the car and was run over and severely injured. According to his testimony the injuries to his back and leg are permanent. There was sufficient evidence, if the jury believed Jones and the witnesses introduced in his behalf, to fully sustain the verdict.
A great many other questions are presented and argued in the briefs. We have examined them with considerable care, but find no sufficient error therein to set aside the verdict or reverse the judgment. The judgment of the district court will therefore be affirmed. (All the justices concurring.)
(34 Kan. 438)
DENTON V. CITY OF ATCHISON.
Filed December 4, 1885.
1. MUNICIPAL CORPORATIONS-SIDEWALK CONTRACT.
A city advertised for proposals for the building of certain sidewalks according to plans and specifications on file in the office of the city engineer, and in response thereto a contractor made a proposal to build the walks at a certain price, in accordance with such plans and specifications, and under the direction and to the acceptance of the city engineer, which proposal was duly ac cepted by the mayor and council of the city. Held, that the proposal of the contractor being definite, and the acceptance by the city being unqualified, they together constituted a contract between the parties, and that the plans and specifications referred to in the proposal became a part of such contract. 2. CONTRACT-PERFORMANCE ESSENTIAL TO RECOVERY.
A substantial performance of a contract is indispensable to a recovery thereon.
3. MUNICIPAL CORPORATION-SIDEWALK CONTRACT-SUBSTANTIAL ERFORMANCE -QUANTUM MERUIT.
By the terms of the contract in this case, the subsills of the sidewalks were to be of oak material, and two by six inches in dimension, while those that were put in the walks by the contractor were of pine material, and only two by four inches in size. It appears that oak subsills of the dimensions required in the contract would last at least twice as long as pine subsills of the dimensions actually used. Held, that there was not a substantial performance of the contract, and no recovery can be had thereunder; and held, further, that, there being no acceptance or use of the sidewalks, and no waiver of performance by the city, no recovery can be had upon a quantum meruit.
Error from Atchison county.
Jackson & Royse, for plaintiff in error.
John C. Tomlinson and Smith & Solomon, for defendant in error. JOHNSTON, J. Henry Denton brought this action against the city of Atchison to recover the sum of $421.90, and interest, claimed to be due him upon a contract for furnishing material and constructing sidewalks upon certain streets within the city. The defendant denied performance of the contract, and refused payment. A trial was had before the court, and judgment given in favor of the city for costs. The plaintiff is here complaining of that judgment and asking a reversal. The facts in the case, as disclosed by the record, are briefly these: On November 23, 1881, the city advertised for proposals to construct certain sidewalks which were to be five feet four inches wide, and to be paid for in special assessment bonds issued for the construction of sidewalks. The advertisement also contained a clause. that the "plans and specifications for the above work can be seen at the city engineer's office, under whose direction, and to whose acceptance, all work must be done." On November 28, 1881, in response to the advertisement, the plaintiff made a proposal to the city that he would build the sidewalks described in the advertisement "according to the plans and specifications on file in the office of the city engineer, and under his direction and to his acceptance, at the following price, viz.: "463 cents per lineal foot, payable in sidewalk bonds." The mayor and council, being in session, on November 28, 1881, duly accepted the proposal made by the plaintiff, and a notice of the acceptance was given to him. At the time the contract was
made there was on file in the office of the city engineer a plan for a sidewalk five feet four inches wide, and resting upon four stringers, like the walks described in the advertisement of the city and in the proposal of the plaintiff. This plan showed the kinds, quantities, and dimensions of the lumber and materials to be used in the construction of the walks, and specified that the subsills supporting the ends of the stringers should be two by six inches in size, and the intermediate ones two by four inches in size, and all to be of oak material. It appears that this plan had not been prepared for these particular sidewalks, but was a general one for all sidewalks of that width, and which had been on file in the city engineer's office for several months. The plaintiff proceeded at once to furnish material and construct the walks, and soon after the completion of the work, he requested the city engineer to examine and accept it. Upon examination, the city engineer refused to accept the sidewalks upon the ground that the subsills upon which the plaintiff had placed the walks were not of the dimensions and material required by the contract. In constructing the walks, the plaintiff had used pine instead of oak for the subsills, and those at the ends of the sections were two by four inches in size instead of two by six inches, as described in the plans on file in the city engineer's office. The plaintiff claimed that under the contract he was not required to use oak lumber, and that there was no agreement regarding subsills. It does not appear that any formal contract was entered into between the parties. Soon after the plaintiff's proposal was accepted it seems that a contract, in brief form, was prepared by some person and signed by the plaintiff, which did not state the kind or dimensions of the lumber to be used for subsills, but it does not appear that the same was ever signed by the mayor, and it was not produced at the trial. So far as the testimony shows, its provisions seem to have been substantially like those stated in the advertisement and proposal. No other contract or formality was required or necessary. The proposal of the plaintiff was clear and definite in its language, and its acceptance by the city was unqualified. Together they constituted the agreement of the parties under which the sidewalks were to be constructed, and by which the plaintiff's right to recover compensation therefor is to be determined. There could not well be, and, indeed, there seems not to have been, any misunderstanding of the terms of the agreement. The advertisement for bids in plain terms provided that the walks were to be built in accordance with the plans and specifications on file in the office of the city engineer, and the proposal made by the plaintiff to the city in equally plain terms offered to construct the walks according to those plans. The plans, therefore, became a part of the agreement, as much as if they had been incorporated in or attached to a formal written contract.
It is conceded that in building the walks the plaintiff has not followed the plans nor observed all the requirements of the contract, and