The times. [volume] (Richmond, Va.) 1890-1903, 1900-09-16
EClslON
SUP COURT.
a Opinion Of the late Judge Rely
Handed Down.
M IMPORTANT RAILWAY CASE
u CAes In witch Mans Former
saavss Bind Themseiyes TO Him for
Ldfs log !. cons.der.tion-Ap-
peal from Two DEGREES.

peal from Two DEGREES.
szhe soalowinE opinions we're handed
1own by the Supreme Court Of Appeals
6 Virginia Thursday last, in session a;
Stanton: -. = =
Atlantic and Danvil,e Railroad Com.
pany VI. Delaware Construction Company
The opinion In this case. which affirms
The decree OF the Court Of Law and Chan
cary OF the city of Norfolk, was prepared
oy me 1ate Judge John w. Rely and
handed down by the Court
IAe eSe arises out of the following
Facts: The Atlantic and Danrilie Rail-
road company entered into an agreement
with rutherford and Brown, contractors.
1or the furnishing of all materials for
and the construction OF certain docks,
piers and warehouse and 10 do certain
dredging for the said railway company
At Its western terminus at Norfolk. and to
remove certain docks and pier work, all
OF the work to be completed within four
months from the date of the contract
The work. however. was not completed
unsil about live months after the time
specified and the railway company In
entufed suit to recover from the con-
tractors damages for the delay and fail
esre to complete the work as agreed. and
the contractors sought by cross-bill tc re-
cover from the railway company the
percentage Of moneys withheld by 1t on
the monthly estimates of work, also COM
pensation for alleged extra work done
and materials furnished and damages for
the failure and refusal of the railway COM
pany to give proper facilities for the per-
forma1ce OF the work.
The railway company claims compelsa-
ton 1or the failure to complete the work
within the agreed time. and in addition,
that 1t should be allowed, at the least,
two specific Items of damage. to-wit. for
extra expense to which the company had
been put IN handling I.7e3 bales of cot
ton, owing to the non-compleion of the
work, and the loss Of an alleged net rev.
enne on the shipment of Il, 600 bales of
cotton, which it was forced to decline by
reason of the unfinished condition of the
work
! It cannot be Questioned, the opinion
says. that time was an important fea-
kure in the completion of the work to the
railway company and that it would be
entitled TO recover damages for any injury
shown to have resulted from the delay.
provided the delay was not occasioned by
itself Upon this last point the evidence
IS voluminous and conflicting, but the
conclusion Of The Court is that it was
due not only to the changes required by
IdllWdy Company lu LIE SASSOt1Ou VA
the work and underestimate of the
amount of dredging, but mainly due to the
Interference by the railway company by
keeping possession of and continuing to
use the property wherein the improve
ments were being made. While the con-
tract by its terms, contemplated an eX-
tension Of time to be agreed upon be-
tween the parties for any extra work
and no such extension was ever agreed
,an 1a. I1on
to cover a case of delay resulting from
the fault OF the railway company.
Besides the responsibility of the rail-
way company Tor the delay, the contrac-
tors are on other grounds relieved from
liability for the alleged specific items of
damage, since the first is not satisfac-
tortly established by the evidence, so as
to show that the lower court erred in
disallowing it, and the second, that the
railway company lost q certain sum net
profit on the shipment of 1900 bales of
cotton, which II had 10 refuse. is altogeth-
er uncertain and wholly conjectural as to
whether there would have been any gain
or profit on such shipment. and remote
and speculative damages cannot be al
lowed.
Before the completion of the entire
work contracted for the warehouse and
pier No. /. which had been built. We're de-
stroyed by fire without the fault of eth
er party, and the railway company claim
ed damages upon the ground that these
We're not rebuilt by he contractors The
opinion cited various authorities upon
the subject of entire and severabe con-
tracts and reaches the conclusion that
the contract in question was an entire
contract. as would seem to be the inten-
ton Of the parties from The Incorporation
IN 1t OF the provision that ten per cent
OF the monthly estimates should be with
he1d until the whole work was COM
pleted and final estimate made. Where
a contract is entire. the whole work
must be completed and delivered in a
state of completion before there can be
q demand for payment, and il any part
has been destroyed by accident or act of |
God, the loss must be borne by the con-
tractor.
Ii is different, however. where one
contracts TO DO a particular part of the
work In the construction of building and
the building is so destroyed before the
completion. In that case he is excused
from further performance and may re-
cover.
Whether or not the contract was entire.
however. the opinion says. Is immaterial,
as the railway company had taken posses
sion of and was using the pier and ware
house before it was destroyed, and, while
no formal acceptance nor final estimate
OF it had been made by its engineer, its
acceptance under these circumstances is
to be Implied and the loss resulting from |
the destruction of the property was pro-
perly placed upon the railway company.
Nor can the railway company recover
upon the ground that 1t had to remove
certain old work which the contractors |
agreed to remove. since 1t appears that |
4 was allowed ali expense Incurred for
what had been removed, and that the |
remaining work will not necessarily have
10 be removed
The wages paid the inspectors of the
railway company after the time agreed |
upon for the completion of the contract
we're properly refused as an item OF dam
ages. since the delay was caused by the
galway company itself.
The lower court properly allowed the |
for the putting in of the sky
light into the warehouse This was an |!
ITEM OF extra work agreed to be done.
which was not entirely completed, owing
70 the destruction Of the warehouse by
IRE. Having been accepted, it was the