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December 1, 1855


THIS case was brought up by writ of error from the circuit court of the United States for the District of Maine. The case is stated in the opinion of the court. It was argued by Mr. Clifford and Mr. Shepley, for the plaintiffs in error, and Mr. Francis O. J. Smith, for defendant. With respect to the point that the bill of exceptions was well taken in this case, the counsel for the plaintiff in error laid down the following propositions:–– 1. That the bill of exceptions in this case is within the intent if not within the very letter of the statute; and therefore it is insisted that the legal questions herein presented are regularly within the revisory power of this court. 2. That if it is not strictly speaking a bill of exceptions, it is at least 'an exception in the nature of a bill of exceptions,' and therefore it is insisted that the legal questions are examinable on a writ of error. 3. That the rulings and determination of the circuit court, presented for revision are apparent in the record, inasmuch as they are incorporated into the record of the judgment together with the facts on which they were applied under the hand and seal of the circuit judge, and therefore it is insisted that the writ of error well lies. In support of the first proposition, they cited and commented on 4 Bing. (N. C.) 83, (33 C. L. 283;) 6 Pet. 655; Co. Litt. 288 b; 1 Arch. Prac. 530; 1 Bac. Abr. 529; 17 How. 6; 1 Halsted, 388; 7 Johns. 494. In support of the second: 16 Pet. 176; 7 How. 855, 866. In support of the third: 7 Cranch, 596; 2 How. 394; 10 Ibid. 190, 329; 17 Ibid. 12; 4 Pet. 206. They then referred to the course of proceeding in Maine, on awards of referees made under a rule of court, and cited a number of cases in that and other States. Upon the main point in the case, they laid down the following propositions:–– 1. A report or award of referees is wholly void if it includes damages for a matter not embraced in the submission, unless the amount improperly included can be ascertained and separated from the residue of the sum awarded. 5 Wheat. 394, and other cases. 2. Damages in lieu of the reserved stock, and at a valuation estimated by the referee, were included in the award; and the record affords no means whatever of ascertaining what that valuation was, or of ascertaining the amount so included. 3. No claim for the reserved stock, or for damages for non-delivery thereof, was embraced in the declaration, or sued for in the action; and, as the reference was one of the action merely, no such claim was submitted to the arbitrament of the referee. These propositions led to a very minute examination of the facts and accounts in the case.

The opinion of the court was delivered by: Mr. Justice Campbell delivered the opinion of the court.

Mr. Smith, for defendant in error, made eleven points; but it is only necessary to state the one upon which the decision of the court rested:––

9. The several causes of complaint in the plaintiffs' bill of exceptions and assignment of errors, are in the nature and of the effect of a motion to set aside the award, and to grant a new trial, or to recommit the report of the referee; and, under the rule of court, are, as such, only fit matters to be addressed to the consideration and discretion of the circuit court to which the report was made returnable, and are not subject-matters for revision by this court, on a writ of error. Opinion of the circuit court of the United States for the district of Maine, annexed; Parsons v. Beford et al. 3 Pet. 445; Wright et al. v. Lessee of Hollingsworth et al. 1 Pet. 168; Cutler v. Grover, 15 Maine R. 159; Walker v. Sanborn, 8 Ibid. 288; Cumberland v. North Yarmouth, 4 Ibid. 459; Whitney v. Cook, 5 Mass. 143; Boardman v. England, 6 Mass. 70; Toland v. Sprague, 12 Pet. 331; Evans v. Phillips, 4 Wheat. 73; Henderson v. Moore, 5 Cranch, 11; Harker v. Ellicott et al. 7 Serg. & R. 285; Zeller's Lessee v. Eckert et al. 4 How. 289.

This is an action by the defendant in this court (Myers) against the railroad company, for the breach of the covenants in a contract made between these parties in August, 1850, by which the defendant agreed to perform certain work, incur charges and expenses, and supply equipments and materials in the construction of a railroad from the city of Portland, in Maine, to South Berwick, in New Hampshire; and also to fulfil the unexecuted engagements of certain contractors who had retired before completing their contract. Before the terms of the contract had been accomplished, the defendant was dismissed, as he alleges, without a sufficient cause; and the object of the suit is to recover such damages as he had sustained by the failure of the company to discharge the obligations they had assumed to him. The declaration recites at large the agreements of the parties, and contains a general averment that he entered upon the construction of the railroad, and the performance of all the matters and things upon his part to be done and performed, and had performed all the things required to be done and performed, until the 19th of August, 1852, and had nearly completed one of the sections of the road so as to be fit for use, and that it had been used; also, that he had expended large sums towards the engineering, surveys, construction, and grading of other parts of the road, until he was unlawfully dismissed, and hindered, and forbidden to prosecute the work any further.

The declaration then contains a general averment of the nonperformance by the plaintiffs (railroad company) of their obligations to suffer the work to proceed, to abide the decision of their engineer, or to pay the amounts that had become payable prior to his dismissal.

This averment is material, in connection with other parts of the case, and will be extracted hereafter.

The defendant (Myers) proceeds to take up the various stipulations of the railroad company, to describe their legal effect, and to denounce their breach by the company. None of these are of importance to the case here, save those that arise on the 8th and 9th articles of the contract. The first of these articles provides for the payments to be made on account of the first division of the road; and the other, for those on the three remaining sections into which it was divided. The 8th article provides that the corporation should pay to the defendant for the performance of his undertakings, and in full satisfaction of the obligations of the company on the prior contracts, $32,000 per mile for the first division of the work; that for all work done by the previous contractors, to the 1st of August, 1850, payments should be made according to their contracts, inclusive of the reserve fund; for all lands purchased by them, whether for cash, bonds, or stock, payments should be made in cash, bonds, or stock, according to the mode of the purchase; and for all such work on said first division, from the 1st of August, and as the same should progress, current payment should be made at the rate of fifty per cent. in cash, twenty-five per cent. in the six per cent. bonds of the company, and twenty-five per cent. in stock; one half of the latter to be reserved for an indemnity for the fulfilment of the contract, until said division of the road should be completed.

The 9th section of the agreement refers to the second, third, and fourth sections of the road. For the fulfilment of all its obligations, the company agreed to pay $27,500 per mile thirty-three and one third per cent. in cash, on the return and adjustment of each monthly estimate by the engineer; a like sum in the bonds of the company; and a like sum, reserving one half thereof for indemnity, in the stock certificates of the company. 'The monthly estimates to be governed by the same gradation of actual expenditures as heretofore, and the payment to be made on such estimate of actual expenditures.'

And it was provided, that, upon the completion of either of the second, third, or fourth sections, in work, material, station-houses, and equipments, the whole of the payments of cash, bonds, and certificates of stock, in corresponding amounts, equal to the sum aforesaid, should be made in complete discharge of said company upon all the contracts pertaining to that section of the road. The breaches laid in the declaration, applicable to the payments, are as follows:––

'And the said plaintiff in fact saith, that the said defendants, contrary to the covenants or agreements in the indenture aforesaid, did not abide by the decision of their engineer, as to the amount and quantity of the several kinds of work done, in and by said indenture contracted to be done by said plaintiff for said defendants, and which were done and performed by the plaintiff; nor did said defendants pay said plaintiff for the work done by him for them, according to said agreement; but, on the contrary, utterly refused to pay the plaintiff therefor, according to the estimate of their engineer; although the plaintiff avers that said engineer made to said defendants a return of the monthly estimates of the work and labor done by plaintiff upon said road.'

The declaration recites the eighth article, and avers a breach in reference to the payments, as follows: 'And the plaintiff avers that said defendants, in breach of their covenant aforesaid, did not, for all the work performed and material furnished up to said first of August, make a full settlement, as had been heretofore estimated, monthly, and pay the plaintiff therefor, in accordance with the covenants aforesaid; neither did said defendants, for all work on said division, as the same progressed, after said first of August, according to their covenants aforesaid, pay therefor fifty per cent. in cash, twenty-five per cent. in bonds, and twenty-five per cent. in stock, one half being retained, as stipulated, for an indemnity; nor did said defendants pay the plaintiffs therefor, according to the monthly estimates of the engineer, as returned by him.'

The breach of the covenants contained in the ninth article is averred in language similar to the above, with variances corresponding to the difference of the sums to be paid.

Before a trial, the parties agreed to refer the action to the determination of three persons, to be appointed by the court, whose report, or the report of any two, was to be made as soon as may be; and that judgment thereon was to be final, and execution to issue accordingly.

Afterwards, one of the persons appointed was authorized to act alone, and this person returned a decision in favor of the defendant, ...

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