Charlotte Harbor & Northern Railway Co. v. Burwell

Citations

• 56 Fla. 217

Syllabus

<p>l. Where a contract is entered into not under seal between a railway, company of the one part and a firm of contractors of the other, for the construction of certain trestle and bridge work, and among other things provides that no claim for extra work shall under any circumstances be allowed or considered unless the same shall have been done .in pursuance of an order in writing given by the engineer, but nothing shall be , deemed or construed as extra work which can be measured and estimated under the terms of the contract, such a provision, and other like ones, intended for the benefit of the railway company, while legal, may be waived, and such waiver may be shown by the subsequent course of dealing between the parties.</p> <p>2. In a suit to recover for work and materials when the compensation therefor is not fixed by contract, it is essential to a recovery that there should be proof of the reasonable value of such work and materials, and the evidence of the plaintiff that he paid a sub-contractor for this work upon estimates furnished by a resident engineer of the defendant is not sufficient proof of such reasonable value.</p> <p>3. Where the owner of certain crushed granite offers to sell the samé to a party upon whose premises the rock is located, and the latter agrees to buy the same, but there is nothing given by way of earnest to bind the bargain or in part payment, and no note or memorandum in writing of the bargain or contract signed by the parties or their agents thereunto lawfully authorized, it is essential to a consummated sale under the Statute of Frauds (sec. 2518 Gen. Stats, of 1906) that the alleged purchaser should have done some act showing an acceptance of the rock; as for instance that he sold or attempted to sell or dispose absolutely of the whole or some portion of the rock, or alters its nature, or the like, and such facts must be clearly shown.</p>