RADEL v. LESHER et al., 137 F. 719

ALDRICH, District Judge. In 1899 there was a written contract between Radel and the Leshers whereby the Leshers were to build an electric railroad between Narragansett Pier and Wickford, in the state of Rhode Island, for which Radel was to pay a contract price for'track laid, wires run, and'material excavated, ■ etc. There is nothing in controversy, however, about the contract for the firát year, or the operations thereunder, and it is only material as having some relation to the claims of the parties as to the second year’s operations.

Under some arrangement between the parties—an arrangement to which the present controversy relates—the Leshers in 1900 had to do with building an extension of the road from Wickford to East Greenwich, and with completing some part of the road between Narragansett Pier and Wickford. The position of Radel was that the operations of 1900 were under a special contract, which resulted from a parol agreement between himself and the Leshers; that the operations of 1900 were to be upon the terms and conditions expressed in the written contract of the year before.

In other words, that by parol agreement the written contract of 1899 was extended over the operations of 1900, while, on the other hand, the Leshers claim that there was no contract engagement; that the interview at Bridgeport had reference only to the question of his taking up the work for Mr. Radel, and as to the probable expense of building the road, in view of the advance in prices for labor and material; and that there was no engagement or suggestion, even, that he was to proceed under a contract. The questions raised for our consideration depend largely, if not altogether, upon the relations of the parties.

If the work was to be carried on under a special contract, as Radel contends, the point against recovering under the common counts would quite likely be well taken.

If, on the other hand, the relation was that of principal and agent, with the broadest possible authority to the agent—authority coextensive with the necessities usual in carrying forward an exterprise wholly committed to an agent’s hands—then unquestionably the common counts would be a proper remedy for recovering what the agent’s services were reasonably worth, and, in the absence of fraud, for money paid for material and labor in prosecuting the contemplated enterprise in the usual manner.

This would be upon the ground that a prosecution of the work in the usual way was within the scope of the authority conferred. Upon this pivotal question of what the relations actually were there is a very serious dispute, and one which cannot possibly be settled as matter of law.

If the parties were in accord as to the talk at Bridgeport about taking up the second year’s operations, then it might be a question of law as to the effect of the conversation and as to the obligations under the contract; but that we need not decide, because the relations depend upon what the conversation was, and the parties are seriously and substantially in dispute as to its tenor and effect, one part)^ testifying to a conversation which tends to establish a contract to go forward upon the terms of the year before; and the other party, denying this, testifies to a request to go on and build the road, and to a conversation tending to show relations inconsistent with contractual relations.

Thus an issue of fact is raised, and upon the trial there was positive and substantial testimony upon both sides of the issue as well as probabilities and circumstances which had substantial bearing one way and the other upon the disputed question. There being substantial evidence on both- sides', the issue was one which necessarily had to be submitted to the jury under instructions as to what the obligations would be in case the jury should find the facts to be the one way or the other.

The disputed question was submitted to the jury under general instructions upon the subject, and, there being no specific objection to the instructions, we need not inquire whether they were sufficiently comprehensive, or in detail technically correct. The only point taken was that there was no evidence to warrant submitting the question to the jury, and none to warrant a verdict for the plaintiffs, and upon this we must find and hold against such contention.

A situation is oftentimes presented where evidence is material and competent upon one theory of the case, while it would be neither material nor competent upon the theory upon which the adversary is proceeding.

That is true of this case, and, in the hypothetical situation which confronted the learned judge below, he could only act upon .the theory that, if the jury should find that the work was being done under a special contract, then the evidence as to the reasonableness of the claim for services, and that the expenditures were such as were usual and necessary, would become wholly immaterial, while, on the other hand, if the jury should believe the other view, then it would have a material and competent bearing upon the question as to what the plaintiffs’ services were reasonably worth, what he had paid out in the defendant’s behalf, and what he was entitled to recover.

The assignments of error directed against rulings which admitted-certain evidence as to expenditures are grounded upon the theory that such evidence was not competent under the quantum' meruit count for building the road, because, as contended, under such circumstances it would not be the cost of the labor and materials which have gone into the work, but what the completed structure is fairly and reasonably worth.

In the vifewwe take of this case, we need not consider whether this would be so or not, and this is for the reason, as appears from the record, that the jury, under instructions which submitted the issue of fact between the parties, decided the case upon a different theory of the relations than that contended for by the defendant, namely, that, under the relations which they found to exist, the recovery should be for work, labor, and materials furnished under authority and direction from Radel to build the railroad.

The fact of such relation being found, we see no objection to the evidence as legitimately tending to establish what the plaintiffs were entitled to recover under that view of the case. Thé judgment of the Circuit Court is affirmed with interest, and the defendants in error recover costs in this court.