OWEN v. GILES et al., 157 F. 825

HOOK, Circuit Judge (after stating the facts as above). The mo-ti.on for a new trial and the assignment of errors need not be compared. Under the practice in the courts of the United States the former is addressed to the discretion of the trial court, and the contents thereof do not limit or otherwise affect the matters that may be embraced in the latter.

The court instructed the jury in substance that, if they found that the additional forces went upon the ground covered by defendants’ contracts and performed the “force work” against the will, protest, and consent of defendants, the plaintiffs were not entitled to recover sums paid on account thereof. To this instruction there was an exception. It was claimed that during the trial plaintiffs abandoned their right to recover as upon express contract, and elected to rely wholly upon an implied contract of defendants to pay for services performed at their request.

Some observations of the trial court appearing in the record tend to support this contention. We do not think, however, plaintiffs intended to waive their right to insist that under the contracts they could lawfully enter upon the ground with extra forces and complete the work after defendants made default. The supposed election whereby plaintiffs abandoned their right of': recovery excepting upon the theory finally submitted to the jury occurred at the close of their evidence, yet it appears defendants did not confine their own evidence to a denial that they consented to or requested that the force work be done.

On the contrary, their defense was addressed to both aspects of the case; for instance, they introduced evidence that they had never received a written opinion from the chief engineer that their work was not progressing fast enough, also evidence of weather conditions by which it was sought to excuse their delay in finishing the work within the time limited. Those matters were without relevancy to a case within the narrow limits contended for.

Again, at the close of all the evidence, the trial court said that, were it possible to ascertain from the proof the number of yards of force work for which defendants received the contract price, he would hold the plaintiffs would be entitled to recover therefor. Such a recovery would not depend upon defendants’ consent to or request for the force work. Whilst the court was instructing the jury, plaintiffs’ counsel definitely directed its attention to their position that under the contracts they had a right to take possession of the work.

After the instructions had been given, they again asserted their position by excepting to the part wherein the court said there could be no recovery if the force work was done “against the will, protest, or consent of defendants.” We think it quite clear from the remarks of the court that had it been of the opinion, as we are, that time was of the essence of defendants’ contracts, it would not have instructed the jury as it did. The time for completing the first contract expired August 1, 1902.

The provision in that contract for the action of the engineer was designed as a coercive measure, and to insure the doing of the work within the time stated. It was not intended that defendants’ time should be prolonged indefinitely if the engineer failed to indicate the number of men and teams to be employed. The first contract was not completed in time, nor was it finished on the 1st of the following October. The second contract expressly provided the work thereunder should be done by October 1, 1902; but much remained unfinished on that day.

Winter was- approaching, and plaintiffs were justified in believing that, if left to themselves, defendants would not finish until well along in the following year. Under these conditions, what were plaintiffs to do? Was time of performance so of the essence of the contracts that plaintiffs were entitled to proceed as for a default and forfeiture, take possession of the ground, and complete the work? If this was their right, they could avail themselves of the acts of McIntosh and Cuddington which were in their interest and with their consent.

It would be as though the force work had been done by plaintiffs themselves. Though a contract does not expressly SO' provide, time may nevertheless be of the essence when other conditions manifest its importance. In the case at bar definite times for completion were expressed in the contracts. The contracts pertained' to a work in which the different stages of progress wait upon each other, and in which the order of completion cannot be reversed.

Defendants received what was substantially a copy of the contract between McIntosh and the plaintiffs, and therefore knew plaintiffs’ relations and obligations to others, as well as the wide discretion reserved by the railway company to take the work out of the hands of plaintiffs, not alone for default in contract, but also for mere slothfulness of operation.

Defendants knew that the consequences of their own lack of progress, even before the time fixed for completion, could be visited upon the plaintiffs and plaintiffs’ entire contract finished with the forces either of the company or of others, as the company might elect, and the cost charged to plaintiffs.

The character of the work, its connection with other parts of the general work, the relations of plaintiffs to the original contractor and the railway company, the hazard of loss plaintiffs were subject to for failure of defendants to speed their work and meet their engagements, the fixing of time for completion, all indicate that it was not intended that defendants should have an indefinite period for the doing of their work, but, on the contrary, that time was of importance, and that the time specified was of the essence of the contract.

This construction applies as well to the second contract which was made with knowledge and in view of the same conditions. Wood v. Joliet Gaslight Co., 49 C. C. A. 427, 111 Fed. 463; Philips, etc., Co. v. Seymour, 91 U. S. 646, 651, 23 L. Ed. 341; Fitzgerald v. Hayward, 50 Mo. 516; Warren v. Bean, 6 Wis. 120. On October 1, 1902, a substantial part of the work remained unfinished. The railway company by its general manager was entitled to declare the contract at an end.

The provision of the first contract for a written opinion of the engineer and its communication to the contract- or applied only to a case of lack of progress before the time for completion arrived, a case in which the engineer thought the work would not be completed within the specified period. That is not this case. Here the time had expired, the work was not done, and no communication of the engineer’s opinion in writing was necessary.

As between plaintiffs and defendants, the former were in a sense owners, and under the circumstances it was their right for the protection of their own interests to take possession of the ground and finish up the work at the expense of defendants. Philips, etc., Co. v. Seymour, supra; Champlain Construction Co. v. O’Brien (C. C.) 104 Fed. 930; Wyckoff v. Taylor, 13 App. Div. (N. Y.) 240, 43 N. Y. Supp. 31. In Philips, etc., Co. v.

Seymour, the Supreme Court said: “If the builder has done a large and valuable part of the work, but yet has failed to complete the whole or any specific part of tho building or structure within the time limited by his covenant, the other party, when that time arrives, has tlie option of abandoning the contract for such failure, or of permitting the party in default to go om.” That defendants’ men remained and worked with those who performed the force work and thereby lessened their loss does not alter the result.

If plaintiffs had the right to treat defendants as being in default and to finish the work themselves or to authorize others to do so, it is immaterial that defendants objected. The right of recovery for the force work is based upon the breach of covenant to do the work within the prescribed time, and defendants’ objections after breach do not impair it. Some other matters require notice. The contracts were made and were to be performed in Iowa. Therefore the South Dakota statute that time is not of the essence of a contract, unless by its terms expressly so provided, does not apply.

In plaintiffs’ settlement for the force work they were allowed a rebate. They should not recover from defendants more than they actually paid. If plaintiffs credited themselves and charged defendants with the amount of the $400 note sued on as a payment on the work, and settlement was made on the statement of account showing the same, the note has been paid, and plaintiffs cannot again have the benefit of it. The judgment is reversed, and the cause remanded for a new trial.