Philadelphia, Wilmington, & Baltimore Railroad Co. v. Howard. The evidence of the president of the company, to show that there was an understanding between himself and the plaintiff, that another person should also sign the paper before it became obligatory, was not admissible, because the understanding alluded to did not refer to the time when the corporate seal was affixed, but to some prior time. In order to show that the paper in question bore the seal of the corporation, it was admissible to read in evidence the deposition of the deceased officer of the corporation, who had affixed the seal, and which deposition had been taken by the defendants in the former suit. If the defendants had relied upon the paper in question to defeat the plaintiff in a former suit, they are estopped from denying its validity in this suit. It was not necessary to plead the estoppel, because the state of the pleadings would not have justified such a plea. Where the covenant purported to be made between two persons by name, of the first part, and the corporate company, of the second part, and only one of the persons of the first part signed the instrument, and the covenant ran between the party of the first part and the party of the second part, it was proper for the person who had signed on the first part to sue alone; because the covenant enured to the benefit of those who were parties to it. In this particular case, a covenant to finish the work by a certain day, on the one part, and a covenant to pay monthly on the other part, were distinct and independent Covenants. And a right in the company to annul the contract at any time, did not include a right to forfeit the earnings of the other party, for work done prior to the time when the contract was annulled. A covenant to do the work according to a certain schedule, which schedule mentioned that it was to be done according to the directions of the engineer, bound the company to pay for the work, which was executed according to such directions, although a profile was departed from which was made out before the contract was entered into. So, also, where the contract was, to place the waste earth where ordered by the engineer, it was the duty of the engineer to provide a convenient place; and if he failed to do so, the other party was entitled to damages. Where the contract authorized the company to retain fifteen per cent. of the earnings of the contractor, this was by way of indemnity, and not forfeiture; and they were bound to pay it over, unless the jury should be satisfied that the company had sustained an equivalent amount of damage by the default, negligence, or misco duct of the contractor. Where, in the progress of the work, the contractor was stopped by an injunction issued by a court of chancery, he was not entitled to recover damages for the delay occasioned by it, unless the jury should find that the company did not use reasonable diligence to obtain a dissolution of the injunction. If the company annulled the contract merely for the purpose of having the work done cheaper, or for the purpose of oppressing and injuring the contractor, he was entitled to recover damages for any loss of profit he might have sustained; and of the reasons which influenced the company, the jury were to be the judges. THIS case was brought up, by writ of error, from the Circuit Court of the United States, for the District of Maryland. It was a complicated case, the decision of which involved numerous points of law, as will be seen by the syllabus prefixed to this statement. There were six exceptions to the admissibility of evidence taken during the progress of the trial in the Circuit Court. The plaintiff below then offered eleven prayers to the court, and the defendant, thirteen. The court laid aside all the prayers and embodied its instructions to the jury in thirteen propositions. The facts of the case, out of which all these points of law arose were the following: Philadelphia, Wilmington, & Baltimore Railroad Co. v. Howard. Prior to 1836, there existed in Maryland a company called the Delaware and Maryland Railroad Company, which, by an act of the legislature, passed on the 14th of March, 1836, was united with the Wilmington and Susquehannah Railroad Company; the two united taking the name of the latter. It will be perceived that this company is not eo nomine, one of the parties to the present suit, and it may as well be now mentioned that afterwards a further union of companies took place by virtue of a law of Maryland, passed on 20th of January, 1838. The following companies were united, viz.: The Baltimore and Port Deposit Railroad Company; The Wilmington and Susquehannah Railroad Company; The Philadelphia, Wilmington, and Baltimore Railroad Company;-the three, thus united, taking the name of the latter company, which was the plaintiff in error. On the 12th of July, 1836, whilst the Washington and Susquehannah Railroad Company had a separate existence, a contract was entered into between them and Howard for the prosecution of the work in Cecil county, in the State of Maryland. Two copies of this paper were extant. They were substantially alike except in this; that one of them (the one referred to as marked B) was sealed by Sebre Howard, and was signed by James Canby, President, with his private seal affixed. It was not sealed by the Railroad Company. The other (referred to as marked A) was signed and sealed by Howard, and signed also by Canby, as president. It also bore an impression which purported to be seal of the company. This latter paper was the basis of the present suit, which was an action of covenant. Some of the points of law decided in the case refer to the paper, which makes it necessary to insert it, viz.: Agreement between Sebre Howard and Hiram Howard, of the first part, and the Wilmington and Susquehannah Railroad Company, of the second part. The party of the first part, in consideration of the matters hereinafter referred to and set out, covenants and agrees, to and with the party of the second part, to furnish and deliver, at the proper cost of the said party of the first part, the building materials which are described in the annexed schedule, to the said party of the second part, together with the necessary workmanship and labor on said railroad, and at such times, and in such quantities, as the party of the second part shall designate; and faithfully, diligently, and in a good and workmanlike manner, to do, execute and perform the office, work, and labor in the said schedule mentioned. Philadelphia, Wilmington, & Baltimore Railroad Co. v. Howard. And the party of the second part, in consideration of the premises, covenants and agrees to pay the party of the first part the sums and prices in the said schedule mentioned, on or before the first day of November next, cr at such other times and in such manner as therein declared. Provided, however, that in case the party of the second part shall at any time be of opinion that this contract is not duly complied with by the said party of the first part, or that it is not in due progress of execution, or that the said party of the first part is irregular, or negligent; then, and in such case, he shall be authorized to declare this contract forfeited, and thereupon the same shall become null; and the party of the first part shall have no appeal from the opinion and decision aforesaid, and he hereby releases all right to except to, or question the same, in any place or under any circumstances whatever; but the party of the first part shall still remain liable to the party of he second part, for the damages occasioned to him by the said noncompliance, irregularity, or negligence. And provided, also, that in order to secure the faithful and punctual performance of the covenants above made by the party of the first part, and to indemnify and protect the party of the second part from loss in case of default and forfeiture of this contract, the said party of the second part shall, notwithstanding the provision in the annexed schedule, be authorized to retain in their hands, until the completion of the contract, fifteen per cent. of the moneys at any time due to the said party of the first part. Thus covenanted and agreed by the said parties, this twelfth day of July, 1836, as witness their seals. SEBRE HOWARD, [SEAL. SEAL. SEAL. SEAL. The above-named Sebre Howard and Hiram Howard contract to do all the grading of that part of section No. 9, in the State of Maryland, of the Wilmington and Susquehannah Railroad, which extends from station No. 191, to the end of the piers and wharf in the River Susquehannah, opposite Havre de Grace, according to the directions of the engineer, and according to the specification hitherto annexed, for the sum of twenty-six cents per cubic yard for every cubic yard excavated; the said section to be completed in a workmanlike manner, viz., one mile from Philadelphia, Wilmington, & Baltimore Railroad Co. v. Howard. station No. 191, by October 15, 1836, and the residue by November 1, ensuing. They also contract to make the embankment at the river from the excavation of the road, provided the haul shall not exceed a distance of eight hundred feet from the eastern termination of the said embankment; all other portions of the hauling together not to exceed an average of eight hundred feet; and for any distance exceeding the said average the price is to be one and a half cents per cubic yard for each hundred feet. The party of the second part contracts to pay to the said Sebre and Hiram Howard, the said sum of twenty-six cents per cubic yard in monthly payments, according to the measurement and valuation of the engineer, retaining from each payment fifteen per cent. until the final completion of the work. If any additional work, in consequence of water, grubbing, or hard material, is required on the side ditch or ditches, or through Cowden's woods, the same is to be decided by the engineer, as in case of rock, &c. Specification of the manner of grading the Wilmington and Susquehannah Railroad. Before commencing any excavation or embankment, the natural sod must be removed to a depth of three inches from the whole surface occupied by the same, for the purpose of afterwards sodding the slopes thereof, and all stumps, trees, bushes, &c., entirely removed from the line of road as directed by the engineer. In cases of embankment a grip must be cut about one foot deep for footing the slopes, and preventing them from slipping. The embankments must be very carefully carried up in layers of about one foot in thickness, laid in hollow form, and in so doing, all hauling or wheeling, whether loaded or empty, must be done over the same. The slopes of excavations and embankments will be one and a half horizontal to one perpendicular, except where otherwise crdered by the engineer, and are to be sodded with the sods removed from the original surface. Side ditches and back drains must be cut wherever ordered by the engineer, at the same price as the common excavation. The side ditches will on an average be about nine feet wide on top, and about two feet deep, and will extend along a great portion of the road. In most places where embankments are to be made, the cutting of the adjacent parts is about sufficient for their formation, and as the contractor is supposed to have examined the ground and profiles, and to have formed his estimates accordingly, no allowance will be made for extra hauling. Where more earth is required than is procured from the excavations, the contractor shall take it from such places as the engineer may Philadelphia, Wilmington, & Baltimore Railroad Co. v. Howard direct, the cost per cubic yard being the same as the other parts. Where there is any earth from the excavations, more than is required for the embankments, it shall be placed where ordered by the engineer. All the estimates will be made by measuring the excavations only. Loose rocks, boulders, ironstone, or other pebbles, of a less weight than one fourth of a ton, are to be removed by the contractor at the same price as the common excavation; but in cases of larger size, or for blasting, the price shall be a matter of special agreement between the contractors and engineer, and if the former should not be willing to execute it for what appears to the engineer a fair price, the latter may put the same into other hands. No extra allowance will be made for cutting down trees, grubbing, bailing, or other accidental expenses. Measurements and estimates will be taken about once a month, and full payment will be made by the directors, after deducting 15 per cent., which deduction on each estimate will be retained until the entire contract is completed, which must be on or before the It is distinctly understood by the contractors that the use of ardent spirits among the workmen is strictly forbidden. WILLIAM STRICKLAND, Chief Eng. of the Wil. & Sus. R. R. (Indorsed.) S. and H. Howard's Contract. Sebre Howard went to work alone, Hiram Howard never having signed or participated in the contract. On the 17th of September, 1836, he was served with an injunction issued by the High Court of Chancery of Maryland, against the Maryland and Delaware Railroad Company, its agents and servants, commanding them to desist from the prosecution of a particular part of the work. On the 30th of October, 1836, the injunction was dissolved. On the 18th of January, 1837, the directors of the company passed the following resolution: A communication was received from the chief engineer, representing that the contract of S. & H. Howard for section No. 9, was not in due progress of execution, and recommencing that it should be forfeited, which was read, and on motion of Mr. Gilpin, the following resolution was adopted, viz.: "Whereas, a contract was duly executed between S. Howard (acting for himself and H. Howard,) and the Wilmington and Susquehannah Railroad Company, bearing date the 12th day of July last, whereby the said S. & H. Howard contracted, for the |