Hinkle v. San Francisco & North Pacific Railroad

Ross, J.: The plaintiffs moved for a new trial in the Court below, on a bill of exceptions, solely upon the ground of alleged errors in law occurring at the trial and excepted to by them. The Judge who tried the cause and passed upon the motion, thought that the first exception was “probably well taken,” and therefore entered an order granting a new trial. From that order defendant brings this appeal.

No question of fact being involved, it will be our duty to reverse the order if, in our opinion, no error of law was committed in the trial already had; and this is to be determined from the record as made.

In the complaint it is alleged that on the 9th of October, 1875, the plaintiffs entered into a contract with the Sonoma and Marin Bailroad Company whereby they undertook and agreed to excavate and construct a certain tunnel, within a designated time, according to certain plans and specifications, and to the satisfaction of the chief engineer of the railway company, for which the company promised to pay plaintiffs at certain rates, in gold coin, and in the following manner, to wit: “The chief engineer of said Sonoma and Marin Bailroad Company was, by the terms of said agreement bound and obliged to measure and estimate, on or about the first day of each calendar month, the amount of work done during the preceding month, and to estimate and certify to the amount due for such work according to [630]said contract, and to deliver such certificate to the president of said company; and thereafter, on the tenth day of each month, the said company was bound and obliged to ¡3ay to these plaintiffs the amount named in said certificate, less twenty per cent, thereof, which said twenty per cent, so deducted and retained, should be paid to plaintiffs on the said engineer’s final estimate and certificate upon the completion of said contract.”

The complaint also alleges full performance on the part of the plaintiffs of all the requirements, covenants, and conditions of the contract, and the due acceptance of the work, and, further, that on the 29th of June, 1877, the said Sonoma and Marin Eailroad Company merged into and was consolidated with the defendant, pursuant to law, whereby defendant “ succeeded to all the rights, duties, and obligations of the said Sonoma and Marin Eailroad Company.”

As constituting the plaintiffs’ cause of action, the complaint next charges: “ That for the excavations and embankments and tunneling done and made under said contract as aforesaid, the said chief engineer made his estimates of the work done and returned'his certificates of the sums due thereon, less 20 per cent, thereof, from time to time, until March 9th, 1877, when said engineer made his final estimate of the work done, and returned his final certificate of the sum due plaintiffs for the performance of said contract. That said engineer, in making said estimates and returning said certificates, falsely, fraudulently, and by and with the procurement of and collusion with said Sonoma and Marin Eailroad Company and its officers, neglected and omitted and refused to include in estimates of work done by plaintiffs under said contract, 11,922 cubic yards of excavation and embankment, and also fifteen feet of tunneling, unfairly, improperly, and contrary to the intent and meaning of said contract; that said plaintiffs have duly notified said engineer and the defendant of the foregoing facts, and demanded from said engineer an estimate of said 11,922 cubic yards of embankment and excavation and fifteen feet of tunnel, and a certificate of the amount due therefor, but said engineer refused and still refuses to estimate said work, or certify the amount due therefor, in collusion with and by the procurement of said defendant, and with the intent and for the purpose of