Chesapeake & Ohio Canal Company v. Knapp
34 U.S. 541

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U.S. Supreme Court

Chesapeake & Ohio Canal Company v. Knapp, 34 U.S. 9 Pet. 541 541 (1835)

Chesapeake & Ohio Canal Company v. Knapp

34 U.S. (9 Pet.) 541

Syllabus

District of Columbia. An action of indebitatus assumpsit was instituted to recover a large sum of money, alleged to be due for the construction of certain locks, &c., on the Chesapeake & Ohio Canal. The defendants pleaded the general issue, and called on the plaintiffs for a bill of particulars. The item of claim upon which the jury gave a verdict for the plaintiffs, was stated in the bill of particulars to be, "detention and damage sustained for want of cement on locks No. 5 and 6."

There is no doubt that a bill of particulars should be so specific as to inform the defendant, substantially, on what the plaintiff's action is founded. This is the object of the bill, and if it fall short of this, its tendency must be to mislead the defendant, rather than to enlighten him.

As the bill of particulars is filed before the trial, it is always in the power of the defendant to object to its want of precision, and the court will require it to be amended before the commencement of the trial, and if this be not the only mode of taking advantage of any defect in the bill, it is certainly the most convenient for the parties.

Although this bill of particulars does not specify technically and fully the grounds on which the plaintiffs claim damages, it sufficiently expresses to the defendants that the claim arises for want of cement on locks No. 5 and 6.

The ancient doctrine that a corporation can act in matters of contract only under its seal has been departed from by modern decisions, and it is now considered that the agents of a corporation may, in many cases, bind it and subject it to an action of assumpsit. There can be no doubt that when a special contract remains open, the plaintiff's remedy, is on the contract, and he must set it forth specially in his declaration. But if the contract has been put an end to, the action for money had and received lies to recover any payment that has been made under it.

It is a well settled principle that where a special contract has been performed, a plaintiff may recover on the general counts.

The court ought not to instruct, and indeed cannot instruct, on the sufficiency of evidence, but no instruction to the jury should be given except upon evidence in the case. Where there is evidence on a point, the court may be called upon to instruct the jury on the law, but it is for them to determine on the effect of evidence.

This was an action of assumpsit, instituted originally in the County Court of Montgomery County in the State of Maryland, and by agreement of the parties transferred, with all the pleadings, depositions and other proceedings therein, to the Circuit

Page 34 U. S. 542

Court of the United States for the County of Washington in the District of Columbia.

The declaration contained nine counts: the first, second, and third for goods sold and delivered; the fourth, fifth, eighth, and ninth for work, labor and services and for materials furnished, &c.; the sixth, for money paid, laid out and expended, and for money had and received for the use of the plaintiffs, and the seventh an insimul computassent. The defendants pleaded nonassumpsit, and issue was joined thereon. A rule having been entered on the plaintiffs to file a bill of particulars, the same was duly filed, setting forth all the items of claim against the defendants.

The plaintiffs, in the circuit court, had on 4 May, 1829, entered into articles of agreement with the Chesapeake & Ohio Canal Company to execute certain sections of the canal, then being made by the company, according to certain specifications before agreed upon by the parties. Under this agreement, the plaintiffs constructed eight locks on the canal, and this action was brought for the value of the work done and materials expended on the same, and for other matters which had arisen under the agreement.

The only item in the bill of particulars which was deemed material, and which came under examination and discussion by the counsel and the Court in the argument and decision of the cause, was the following:

"To detention for want of cement at proper times at locks No. 8, 15, 16, 17, 18 and 20; damages sustained in consequence of such detention $600."

The defendants in error read in evidence the specification for Lock No. 6, and their offer to contract for the construction of the said lock on the terms therein stated, and also a paper containing their proposal to execute the said lock according to the plan and the specification, and they proved that the proposals were accepted. They also read the agreement between them and the Canal Company, dated 4 May, 1828, for the construction of the work pursuant thereto, and also like specifications and proposals, and their acceptance by the parties, for the execution of the other eight locks, and the contract for the same; the execution of the work to be done by them under the said contract, being also proved. The specifications particularly described the work to be done, the materials

Page 34 U. S. 543

to be used, and the manner and time of its execution. In the specifications there was inserted the following:

"It is believed that hydraulic cement, suitable for the construction of lock masonry, may be obtained on the Potomac as far east as Shepherdstown."

"Its average cost, it is presumed, will not exceed 40 cents the bushel, delivered at the shore opposite the locks; should it be found not suitable for the purpose and it become necessary to import the New York hydraulic cement or Parker's Roman cement, the president and directors will furnish to the contractor cement so imported in good season, say by 1 May, 1829, at the price of 40 cents the bushel, which shall be deducted from the sum to be paid for the lock if the contractor furnished the cement himself. The extent of its use, if it be so supplied, may be limited by the engineer to a certain distance from the face of the wall."

The proposals stated the prices at which the work was to be done, and the agreement set forth stipulations for the performance of the work, and the sums to be paid for the same, with other matters to secure and define the obligations of the parties thereto.

The plaintiffs also offered and read in evidence the following resolution of the President and Directors of the Canal Company, passed 2 September, 1829.

"Ordered that the board will furnish water lime to such contractors for masonry as shall provide houses to receive it, to be delivered at the river shore opposite to their works at 40 cents per bushel."

And also the following resolution of the said president and directors, passed 20 January, 1830.

"Resolved that although this board has stipulated to supply the contractors with water lime, yet the board will not be held responsible for any damage arising from the want of that article."

And also the answer of Theophilus Williams to an interrogatory on the part of the plaintiffs.

"To the thirty-second annexed interrogatory, this deponent replies that the plaintiffs were very greatly hindered in their operations by the want of cement. This deponent has no written memoranda of the time which the plaintiffs were so hindered, but believes that the time lost by the failure of the

Page 34 U. S. 544

defendants to furnish cement, was not less than one-third of the whole time from the 1 April to 1 August, 1830, and this deponent can further state that the opinion of the late resident engineer, Daniel Van Slyke, Esq., agreed with that of this deponent above stated, as to the proportion of the time lost by the plaintiffs for want of cement. Orders were given to the plaintiffs not to discharge their men when idle for want of cement, but to retain them all under pay until a supply could be procured. This order had not reference to any one particular time when the plaintiffs were hindered for want of cement. The deponent was directed by the resident engineer to communicate the order to the plaintiffs, and did accordingly communicate it to them. This was the usual course of transmitting orders to the contractors for the different works on the Chesapeake & Ohio Canal. This deponent received the same order at several different times from the president of the company. It was reiterated to the plaintiffs at various times, and was, as this deponent believes, strictly complied with by them. This order, as well as that referred to in the answer to the twentieth, was, according to this deponent's recollection, verbally given. This deponent cannot state with accuracy, to what extent the plaintiffs were delayed for want of cement previous to 1 April, but thinks there was some considerable for want of cement before that time. From what this deponent recollects of the number of men and teams employed by the plaintiffs, and the high wages paid to laborers generally, and more particularly to mechanics, and the expense of subsisting men and teams, this deponent is fully convinced that, including the wages of laborers and mechanics, the subsistence of men and teams, and the wear and tear of tools, the expense of the plaintiffs must have averaged, while hindered for want of cement, from $150 to $175 a day. The deponent cannot say with exactness what number of days the plaintiffs were compelled to suspend their operations for want of cement, but thinks the whole detention may have been equal to from thirty to forty entire days."

And also the answer of Milo Winchel, to an interrogatory on the part of the plaintiffs.

"To the ninth interrogatory, this deponent answering, says that the defendants delivered the cement very irregularly, in small quantities, which caused very great hindrance and loss

Page 34 U. S. 545

of time, and expense to these plaintiffs, by keeping a very large force of mechanics, common laborers, and teams lying idle and upon expense of wages and board whilst waiting for cement; the precise loss and damage incurred deponent cannot state, but, from his best recollection, would say that the loss of time thus incurred from 1 March, 1830, until the completion of the said locks in August therefrom could not be less than forty days, at an expense to these plaintiffs of from $160 to $170 per day, besides the damage was very serious by delaying the work until the sickly months of July and August, which was the cause of a great advance in all kinds of labor to induce laborers to remain upon the line of the canal at this season of the year; all this expense and risk might have been saved to these plaintiffs, had the cement been furnished as agreed on the part of the defendants, which would have enabled the plaintiffs to have completed the whole of their work early in June, 1830."

And also the answer of Henry Smith to an interrogatory on the part of the plaintiffs.

"To the eleventh interrogatory this deponent will answer that much delay was occasioned to the plaintiffs by the nondelivery of cement in quantities to meet their demands; the consequence was they were compelled to keep their hands under pay without labor, and deferring the completion of their work until the more sickly season, when labor, if procured at all, was obtained at an advance from twenty to thirty-three percent. It is believed by this deponent that if sufficient quantities had been delivered in season, that the locks would have been completed by 4 July. That, at the time locks No. 18 and 20 were in progress, the plaintiffs often complained of a scarcity of cement, and one particular time they were lying idle for a number of days with a large force of hands, and, as deponent understood at the time, they were all under pay from the plaintiffs. The number of days alluded to above is believed to be two weeks or more, and many other times deponent knows of there being a want of cement, but the aggregate cannot be positively stated."

And also the answer of Moses Randal to an interrogatory on the part of the plaintiffs.

"To the eighth interrogatory hereunto annexed this deponent,

Page 34 U. S. 546

answering, says that these plaintiffs were greatly hindered and delayed, nearly the whole time they were employed in building these locks, by the irregular manner in which the cement was delivered, and that the amount of such hindrance upon locks No. 15, 16, 17, 18 and 20, from 1 March, 1830, till their completion in August following, was not less than forty entire days, at an expense to these plaintiffs of $170 per day. There were eighteen days at one time in which the plaintiffs received but two small loads of cement for the use of two hundred men, being insufficient to supply them one day, besides the damage was very serious by protracting the work until the sickly months of July and August, which was the cause of a great advance in all kinds of labor, to induce the laborers to remain upon the line of the canal at this season of the year. All this risk might have been saved to these plaintiffs had the cement been furnished as promised on the part of the defendants, which would have enabled the plaintiffs to have completed their whole work early in June, 1830, and deponent further says that the plaintiffs suffered great hindrance and loss by the interference of the work under Messrs Bargy and Guy on section 18 by the breaking of the face stone by coming in contact with their carts and wagons and by the men's being driven from their work many times in a day to escape the dangers from the heavy rock blasting upon said section; the damage done to the plaintiffs during this interference deponent cannot precisely state, but knows it was great. This deponent recollects that in one instance, on Lock 18, a large rock was thrown against the wing wall of the lock and so deranged several courses of their work as to require relaying; in several other instances the work of the plaintiffs on Locks 17 and 18 was deranged by the falling stones breaking and displacing the cut stones in the wall. The plaintiffs remonstrated against these injuries, and threatened to abandon the work, in consequence of which Daniel Van Slyke, the agent of the defendants, agreed to indemnify them against all damages arising from this source."

And also the answers of Benjamin Wright to interrogatories put to him by the plaintiffs.

"To the ninth interrogatory he saith that he knows that in many cases the cement was very bad; in others, the same was damaged by having been allowed to get wet before delivery

Page 34 U. S. 547

to the plaintiffs. That it was furnished by the defendants in small quantities, and in a very irregular manner, and in many cases not furnished at the times agreed upon between the plaintiffs and dependants, it being expressly understood between the plaintiffs and defendants, that the cement should at all times be furnished as it was required for the prosecution of the work."

"To the tenth interrogatory he saith that he knows the plaintiffs were put to serious loss and damage in consequence of the failure of the defendants in supplying cement, as stated in the last interrogatory, the said plaintiffs being obliged to keep their laborers and mechanics in pay when they were actually unemployed, said plaintiffs being in the daily expectation of receiving the said cement, which state of things continued in some instances for a week together, and at others for two, four, and six days, and deponent further knows that, in consequence of such failure on the part of the defendants to furnish the cement at the periods agreed upon, the work of the plaintiffs was necessarily protracted to the sickly part of the season, which necessarily caused a great increase in the wages of the mechanics and laborers to induce them to remain during the said period. Deponent further saith that he knows that the president of the company on many occasions directed the plaintiffs not to dismiss their men, stating from time to time that he would have cement furnished which in many cases was not furnished in compliance with his assurances, but deponent cannot say what was the actual loss incurred by the plaintiffs, although, as above stated, he believes it to have been very serious."

Upon which testimony the plaintiffs prayed the court to instruct the jury, and it did on the said prayer instruct the jury that if the jury believes from the said evidence that the defendants had, on 2 September, 1829, and from that time till 20 January, 1830, contracted with the plaintiffs to furnish them with cement, &c., in due time, &c., and that the plaintiffs, expecting that sufficient supplies of cement to go on with the work would be furnished by the defendants, as defendants had so engaged to do, hired a large number of hands and brought them to the locks, and when the defendants had so failed to furnish the cement, kept the same hands idle, waiting for cement, on the defendants'

Page 34 U. S. 548

desire that they should do so, in order to be ready to go on with the work, and paid them their wages while so waiting, then the plaintiffs are entitled under the count for money laid out and expended, contained in this declaration, to recover the money so paid to said hands during such periods. But that the plaintiffs are not entitled to recover for wages paid to their workmen on account of a deficiency of cement after the said 20 January, 1830, unless the jury shall be satisfied by the said evidence that the said resolution of the board of directors of 20 January, 1830, was rescinded by the said board, and a new contract entered into thereafter by the defendants of furnish cement to the plaintiffs, and the subsequent failure on their part so to furnish it, and an agreement also to pay for the wages of the plaintiffs' workmen, while so waiting, and so forth.

The defendants excepted to this instruction.

The jury found a verdict for the plaintiffs for $20,707.56, on which judgment was entered by the court, and the defendants prosecuted this writ of error.

Page 34 U. S. 562

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