The Jacksonville & Atlantic Railroad Company, Plaintiff in Error, vs. James F. Woodworth, Defendant in Error, 26 Fla. 368

Raney, C. J. I. The first assignment of error in this case is, that the praecipe for the summons ad respondendum was not recorded as required by law. The statute,

section 4, page 811, McClellan’s Digest, makes it the duty of the clerks of the Circuit Court to transcribe “ into their memorandum books ” each praecipe before issuing the original writ of summons. If any advantage can be taken by a defendant of the failure of the Clerk to perform this duty, it must be done in the Circuit Court, and at least before a general appearance to the writ. Certainly the objection cannot be raised primarily in the Appellate Court. With these observations, we pass to the question whether or not the verdict is contrary to the evidence, II.

By the terms of the contract the Pavilion at Pablo Beach was to have been completed on the first day of October. The plaintiff, Woodworth, continued subsequently to prosecute the work. From his doing so, and the mere assent thereto (whether express or implied,) by the railroad company, no modification, waiver or abandonment of the contract as to any other of its features than that of the time for completing the building, was to be inferred. Benjamin’s Principles of Contract, 139; Phillips vs. Seymour, 91 U. S., 646; Stewart vs. Keteltas, 36 N. Y., 388; Cooke vs. Murphy, 70 Ill., 96.

The fact that the plaintiff may have had a right to recover damages of the defendant on account of delays to which it put the plaintiff by not delivering materials promptly in accordance with the contract, did not entitle him to any more or different pay for building the Pavilion, than the sum specified in the contract. The parties had the right to alter the contract as to any of its terms, if they saw fit to do so; (Munroe vs. Perkins, 9 Pick., 298; Rogers vs.

Rogers & Brother, 139 Mass, 440, and authorities supra), but whoever asserts that there has been any material alteration in, or abandonment of, a contract, pending its execution, is under burden to prove the allegation. From the time of the execution of the contract to the ninth of October, there was nothing to indicate an abandonment of it. On that day the president of the railroad company wrote the letter to be found in the statement of the case, upon which letter the plaintiff, as shown by his testimony, relies as evidence that the contract had been abandoned.

There is.in this letter an admission of detention caused by bad weather, and an expression of willingness to make due allowance for it; but the inference to be drawn from the letter as a whole is that he expected the plaintiff to complete the building, and there is in it nothing indicating an abandonment of the contract except as to the time for completion' of the work.

ITe complains that the building is progressing very slowly, and insists that the plaintiff shall put on additional force and complete it without further delay; all of which must, in the absence of proof of a new contract, be considered as an insistance by the company of a prompt performance by the plaintiff of the September contract in all its features except that of time for the completion of the work. .

The plaintiff states that on or about the 24th of November he demanded a settlement, and that “ they ” (meaning, it is to be assumed, some representative of the defendant,) showed him an account which was more than the contract. He gives no further explanation, or description of this account.

The testimony of Ely, the treasurer of the company, shows that the plaintiff rendered the company an account, consisting of a statement, the commencement of which is as follows: “Jacksonville, Fla., Nov. —, 1885. “Am’t due for labor and material for build’g at Pablo B’ch.” ' This heading is followed by the names of persons and firms, and opposite each name is the amount due them for labor or materials. Below this is a certificate of William C.

West, a notary public, bearing date November 24th, 1885, to the effect that the plaintiff had personallyappeared before him, and being duly sworn, “affirms that the within statement of amount due for labor and material is correct.” Then follows the following account: “Jacksonville, Fla., Nov. 18, 1885. “ J. & A. R. R. Co. To Jas. F. Woodworth, 3Dr.

To building Pavilion at Pablo B’ch, as per contrac t$3,980.00 For casing 17 windows, at $1.50 per window . . 25.50 1 sliding door lock.......... 2.50 3 doz. barrel bolts on sliding doors...... 7.20 Fabor for same.............. 3.00 1 extra column in building......... 5.00 $4,023.20 Rec’d by cash............ 1,100.00 2.923.20 The item: “To building Pavilion at Pablo Beach, as per contract, $3,980,” is an assertion by the plaintiff that he had earned, and was entitled to debit the company the sum stated for building the Pavilion, and this sum being the same as that mentioned in the written contract of September, it, in the absence of proof of another and substituted contract, is to be taken as an identification of the September contract, and an admission of it as being the one under whose terms he had constructed the building, and was claiming a credit of the stated amount.

The other items of this account, one of which is expressly stated to be “extra,” must, in the absence of 'any explanation to the contrary, be regarded as additional to the contract, but not as neutralizing the admission made by the first item. Their presence in the account is not inconsistent with the idea of the existence of the contract as indicated by the first item.

The credit item of $1,100 corresponds in amount witli the aggregate of the five cash payments which Ely, the treasurer of the company, says he made to plaintiff as follows : September 1 ith,$25o, September 19th, $250, October 1st, $300, October 17th, $200, November 10th, $100.

The first four of these payments correspond in their aggregate sum with that of the four weekly installments of $250 each, “ with which to pay for labor,” which the contract provided should be paid to plaintiff while the work was in progress, and it is to them that the president of the company refers in speaking of one thousand dollars as having been paid “ almost literally ” as provided by the contract.

Considering the credit of $1,100 in connection with the testimony of Ely, all of which payments had been made prior to the making or rendering of the account of November 18th, the only reasonable construction to be placed on such credit is, that it is an acknowledgment by the plaintiff of so much as having been paid on the September contract.

Even if we assume that $43.20 of it, which amount is sufficient to satisfy the additional items, was intended by the plaintiff in rendering his account, to be applied to those items, he must still be understood as applying $1,056.80, the balance of the credit, to the $3,980 debit for building the Pavilion under the September contract. The aggregate of the items in the sworn statement of the amount due for labor and material for building the Pavilion, is as it was rendered, $3,340.01. In so far as the evidence shows, these payments appear to have been made to the persons named in it.

On the eleventh of November, the plaintiff accepted an order drawn on him by J. L. Bettes and W. E. Gruber, in favor of First National Bank, for “fifty dollars on account of painting Pablo Beach Pavilion,” and it was accepted by plaintiff “ to be paid by the J. & A. R. R. Co. on settlement of amount due me under Pavilion contract;” and on November 18th, the day on, or as of, which the above account was made out, the plaintiff drew on defendant company, in favor of E.

Gruber, for $415, “amount due them for painting Pavilion,” on which is receipted by Gruber under date of November 25th, and seems to have been paid by draft of the treasurer of the railroad company, dated the 20th of the same month, and the memoranda made by Ely, the treasurer, on the sworn statement represents it as having been paid on this day. This last order is shown to have covered the former acceptance of $50, and it seems that only $415 were paid.

There was also, as is shown by the statement, an order drawn by plaintiff November 17th on defendant, in favor of Clark, Fairhead & Co., for $320.75, “for account of shingles used in Pavilion,” which was paid on the 20th of the month.

These orders and the acceptance, not only show that payments were made to persons named in the sworn statement, but also that the plaintiff, both prior to and on the day of the date of the account of November 18th, in which he recognized the September contract, drew in favor of persons furnishing materials for and doing work on the Pavilion, but there is no mention or explanation from either the plaintiff or the defendant of any prior or subsequent conversation or negotiation between them as to the plaintiff’s drawing, yet it is evident that the terms of the plaintiff’s acceptance of the order of November x ith, are entirely consistent with the idea of a continuation of the September contract; and in the absence of evidence of another contract they are inconsistent with any other idea.

They do not indicate any understanding or intention on his part that this contract had been or should be interfered with, as to the amount to be paid for the building, and his purpose evidently was that the railroad company should pay the amount of the order thus accepted out of what would be due him on a final settlement under that contract.

In view of the date of the account, the natural inference is that the plaintiff must have completed his work on or before that day, for whether we regard the day of its date, November 18, 1885, to be the one as of which or on which the account was made up, it speaks from that day, and an assumption or conclusion that the building had not been completed, or that the other items had not been furnished and done at that time, is entirely inconsistent with the paper as an account representing the indebtedness of the defendant to the plaintiff.

There is then in the deálings of the parties up to the completion of the building thus asserted by the plaintiff, nothing to indicate that he had understood or believed, or that the defendant intended, that the former was to receive any other compensation for the building than the sum of $3,980, or that he was doing the work under any other terms than those mentioned in the contract, relieved, however, of its limitation of the first day of October as the time for completion.

The subsequent items are, in view of the first item of the account, evidence only of additional work not covered by, nor affecting the contract. No payments except the $1,100 were made until two days after the iSth of November, the day by or on which the plaintiff must be assumed to have completed his work.

There is up to this point no evidence that the contract had been abandoned, and there had been substituted in its place an agreement that the building should be constructed at the expense of the defendant company under supervision of the plaintiff, and that he should be paid a per diem compensation for his services, as he, in effect, claims in this action. The plaintiff does not pretend that there was any express or formal abandonment of the contract, and the evidence upon the part of the defendant is that there was none.

Whether there was an implied abandonment, neither party could testify as to, except by stating the facts relied upon as constituting such abandonment. The circuit judge ruled to this effect. What then are the facts, as disclosed by the record, upon which the plaintiff must rely, to sustain his theory of implied abandonment of the original contract ?

There is much conflict of testimony as to the alleged delays, but admitting them, it is plain that the plaintiff never found in them cause for refusing to perform the contract, or for proposing a change of its terms, but, on the contrary, as indicated above, it is clear that during the progress and upon or after the completion of the work, he recognized the contract as continuing.

In September and October he received payments under it, and in November when he makes out his account and claims to be entitled to a settlemcnt, he is found recognizing it as the law regulating the price he was to be paid for building the Pavilion, as he had previously in the same month in the acceptance alluded to above. The cash payment of November ioth of $100, in excess of the $1,000, is not of itself evidence of anything more than a concession pro tanto by the defendant as to the time of payment of the deferred balance of $2,980.

As to the plaintiff’s statement, made in support of the idea of abandonment of the contract, that he had placed upon the Pavilion upwards of $700 in work and materials not called for by the contract or the specifications, it is sufficient to say that no additional materials other than those specified in the above account of November 18th are shown to have been furnished, nor are any sued for in this action, and as to extra labor it is to be assumed that that sued for now and hereinafter more fully explained, constitutes all the labor used in making such building according to the contract with the additional items mentioned in the above account.

The excess of the account sued on is about $725 over the contract price of the building. The facts upon which we must rely as evidencing the alleged abandonment are the -rendition of the sworn statement and the payment of the same by the railroad company.

Unquestionably the payment of anything in excess of the amount called for by the contract was at least a concession by the defendant, but under the circumstances can it be said to be evidence that the plaintiff had done the work under an agreement that the company would pay more, or that there had been an abandonment of the contract, and an implied understanding that the plaintiff should be paid the, cost of the labor and materials and the value of his services.

If pending the execution of the contract there h^d been such a change; if, to instance, the plaintiff had notified the defendant that he would not pursue the work further except upon condition that it should pay as thus indicated, and the company had consented, either expressly or impliedly, the plaintiff could, as held by authorities supra, have recovered for the cost of the labor and materials, and a quantum meruit for his services.

Nothing of this kind was done; and the acts of the plaintiff in recognizing the contract have been such that the payment by the company of the amount in excess of the sum specified in the contract does not, standing as it does, unsupported by other evidence, justify the inference that there had been an abandonment of the contract as to the amount to be paid, and the substitution of an agreement, either express or implied, of the character contended for by the plaintiff, and a performance of any part of the work thereunder.

It is apparent that when the plaintiff rendered the account in November, he did not make any claim for compensation for his own services as superintendent. The unverified account is altogether inconsistent with any such claim. The sworn statement is a list of third persons who had furnished materials and performed labor, and of the amounts due them, which statement he has deposed to be correct. It is a fact that in the account annexed to the declaration no other items of materials furnished for the building are to be found than those appearing in the sworn statement.

The excess of the account sued on over the sworn statement is in the matter of the plaintiff’s charge of $280 for his own services, and in that of labor. The same, or as it would seem eight of the nine laborers to be found in the statement appear in the account annexed to the declaration, and about thirty others, and the aggregate of the amount charged in the labor account for the eight over that stated in the former to be due the nine is about $468, and the total sum sued for on account of laborers is about $ x,ioo in excess of that stated in the sworn account to be due for labor.

The fact that the plaintiff did not, when rendering his account in November, 1885, make claim for all that he claims in the action now under consideration, is evidence that he did’not understand that he was entitled to do so. Assuming as we may, that what is charged on labor account in the bill of particulars annexed to the declaration represents all that was expended on that account in the construction of the building, the conclusion follows that the purpose of the sworn statement was to represent only such labor as he had not paid for; or, in other words, such as the money was still due him for.

There is in the record no attempt at an explanation why the sums now sued other than or in excess of those mentioned in the sworn statement were not claimed when he rendered his account or when he “ demanded a settlement.” The president of the railroad company testified that he had never heard any complaint upon the part of plaintiff, nor any claim from him that the contract had been abandoned, until after the commencement of this action.

Schumacher says, in effect, that he also had heard nothing of the kind until just prior to the commencement of the suit, (which was in the latter part of October, 1886), when the plaintiff’s attorney called upon him and demanded payment of some considerable sum of money. He answered the demand of the attorney by stating that the road did not owe the plaintiff anything, but on the contrary, the plaintiff was indebted to it several hundred dollars, and that if he was worth anything suit would have been brought against him.

He states as his reason for doing this that he knew shortly after the plaintiff rendered the accounts that an amount of money largely in excess of the contract pricq had, as testified to by the treasurer of the company, been paid. The statements of the president and Schumacher are not contradicted by any one.

The plaintiff does not specify the time as of which he first regarded the contract as having been abandoned, nor is there in the record anything proving that prior to the time at which, as against him, it is to .be assumed he had completed the work, he understood that it had been abandoned, or that subsequently to such period of completion he represented to defendant that such had been or was his understanding except or until his attorney made the demand upon Schumacher alluded to above.

It is to be remembered that the testimony as to delays was adduced for the purpose of proving an abandonment of the contract, and not to support any claim for damage sustained by loss of time through such delays; there is no such count in the declaration and no proof to sustain the count of account stated.

If an express promise to pay more than the contract price had been made by the defendant after the completion of the work by the plaintiff, such promise in the absence of a new consideration to support it, would have been void for the want of a consideration, and the actual payment of an amount in excess of what was due under the contract made under similar circumstances, does not create an obligation to pay anything in addition to the excess thus paid. The verdict was contrary to the evidence and is not supported by it, and a new trial should be granted. Branch & Clark vs.

Wilson, 12 Fla., 543; Pensacola & Georgia Railroad Company vs. Nash, 12 Fla., 497; Sanderson vs. Hagan, 7 Fla., 318; Miller vs. White, 23 Fla., 301. Jt will be ordered accordingly.