The Louisville, Evansville and St. Louis Railway Co. v. Donnegan et al. without fault on their part, were prevented from completing the section of road specified in the contract within the prescribed time, because of the company failing to procure the right of way, because of extra work ordered by the engineer, because of the engineer failing to furnish the height, centers and specifications of bridges and culverts, because of changes in the work ordered by the engineer, and because of the incompetency of the engineers; that, after the work was taken out of their hands, the company prosecuted the same at a reckless and exorbitant cost, far in excess of what was required or necessary; that, subsequent to the written agreement, the amount to be paid by the company per cubic yard for earth was fixed by a parol agreement; that in the final estimate the amount returned by the engineer as due to appellees for earth work done by them was too small, giving the figures; that the engineer ordered and directed that the piling for bridges should be of a certain length; that, being ignorant as to the proper length required, they obeyed, and, under the contract, were compelled to obey the instructions of the engineer; that, after the piling were furnished, the engineer ordered them to be shortened, and in the final estimate allowed appellees only for the amount of lineal feet actually used, and neglected and refused to allow them for the amount so cut off; that an excessive, unwarranted and fraudulent amount was charged against appellees by the engineer for placing bridge and culvert timbers furnished by them before their discharge from the work, which amount the engineer, in his final estimate, deducted from the amount due to them; that, subsequent to the written agreement, it was orally agreed between the parties, that appellees should be allowed $2 per thousand feet extra on a large amount of bridge and culvert timbers, because the same was purchased by them at an extra cost, at the request of the company through its proper officers; that in the final estimate by the engineer said extra amount so agreed upon was not allowed to appellees; that the company ordered appellees to remove The Louisville, Evansville and St. Louis Railway Co. v. Donnegan et al. their pile-driver some six miles beyond the section to do extra work, and agreed to pay for such removal and extra work, and that the amount agreed upon was not returned by the engineer in his final estimate; that by the failure of the company to procure right of way, and the failure of the engineer, upon request of appellees, to furnish heights and centers, and to lay out the work, their men were left idle, to their damage in a large sum, giving the amount; that in the final estimate the engineer did not return the full amount due to appellees for iron furnished by them. It is averred that the engineers in charge of the work, whose orders appellees were bound to obey, and who made the monthly and final estimates, were incompetent and unfit for the duties assigned them; that appellees were not allowed to inspect either the monthly or final estimates, and that, acting in collusion with the company, the engineers, at the time knowing that their estimates were too low and false and fraudulent, made them as they did for the purpose of cheating and defrauding appellees. Another written contract, similar in all essentials to the above mentioned, except as it had reference to other sections. of the road, was entered into by the parties at about the same time, for the construction of another section of the railroad in the State of Illinois. That contract provided that the work should be completed on or before the 1st day of August, 1881. The second paragraph of appellees' complaint was based upon that contract, and its violations by appellant. The wrongs charged upon appellant in that paragraph are of the same nature as those charged in the first paragraph, and were charged in substantially the same way. In June, 1881, a third written contract was entered into between the parties, for the construction of certain sections of the road in the State of Indiana. That contract, also, was similar, in essentials, to the others, except as it had reference to other sections of the road. The Louisville, Evansville and St. Louis Railway Co. v. Donnegan et al. The third paragraph of appellees' complaint was based upon that contract, and violations of it by appellant. And here again the wrongs charged upon appellant are of the same nature, with the exception of some additional charges as to stone, etc., as those charged in the first paragraph of the complaint, and were charged in substantially the same way. The fourth paragraph of the complaint is based upon the three contracts above mentioned, and alleges that they all related to work upon the same road, and in fact constituted but one contract, and were so treated by the parties; that payments were made upon all three, indiscriminately; that the accounts were so kept by the railway company and the appellees that amounts due to them upon and under any one of the separate contracts could not be distinctly ascertained; that the work done and materials furnished by appellees up to the time when the work was wrongfully taken charge of by the railway company amounted to $80,000; that if they had been allowed to complete the work under the contract, as they would have done but for the wrongs of the railway company, which are stated as in the other paragraphs, there would have been due to them from the railway company $96,000; that the fair and reasonable cost of furnishing the materials and doing the work according to the contract would not have exceeded $65,000; that appellees were entitled to recover the difference between that amount and $80,000, for materials furnished and work done under the contract, and $5,000 profits, which would have been made by them on the work done and materials furnished by the railway company in the completion of the work, etc. It is sufficient here to state that the answers by appellant generally and specially denied all indebtedness, and all charges of wrong against it and its engineers and agents, and all charges of mistake and incompetency on the part of its engineers, whether as connected with estimates or otherwise. They further charged that the failure on the part of appellees to complete the work within the time fixed was caused. The Louisville, Evansville and St. Louis Railway Co. v. Donnegan et al. by their own neglects and wrongs; that the company made liberal advances to them as the work progressed, and that they fraudulently failed to pay for materials and labor, and thus involved the company in expensive litigations. It was further alleged, that the company did not take the work from appellees as charged; that, on the contrary, the work was done by their employees under foremen of their own choosing, subject only to the proper direction of the company's engineers and such supervision in the disbursement of moneys as was rendered necessary by the fraudulent conduct of appellees, etc. The trial court made the following special findings of facts and conclusions of law: "SPECIAL FINDINGS. "1. That the plaintiffs and defendant entered into the contracts mentioned and described in the plaintiffs' complaint, as therein stated. "2. That in due time, and with a reasonable force, the plaintiffs entered upon the work of performing and completing the several contracts. "3. That on account of an insufficient number, and the incompetency or negligence, or both, of the local or resident engineers upon all the sections embraced in the two contracts in Illinois and the contract in Indiana, the prosecution of the work by the plaintiffs was greatly interfered with and delayed. "4. That when the contractors were ready to do the work, the necessary staking and alignment of the road had not been made or done, and the engineers' work in this respect, and also in furnishing the necessary data for bills of lumber for bridges, and proper designations as to where bridges, culverts, and piles were needed and expected to be placed, and the failure to procure the right of way in different places, each and all, substantially interfered with and delayed the prosecution of the work. "5. That owing to the negligence, carelessness, incompe The Louisville, Evansville and St. Louis Railway Co. v. Donnegan et al. tency and mistakes of the company's engineers, the statements of the work were in many instances incorrect. "6. That the plaintiffs could, and, so far as the evidence shows, would, have completed each of the several contracts mentioned in the complaint in the manner therein prescribed, and within the time limited by said contracts, if they had not been hindered and delayed by the fault, negligence, insufficiency and incompetency of the defendant's engineers. "7. That the work was taken out of the control of the plaintiffs on the 20th day of October, 1881, and that the agents of said railway company incurred and permitted more expenses than even at that season of the year were necessary or proper for the completion of the work. "8. That had the defendant's employees been without fault, negligence or incompetency, and had they not caused the delay of and interference with the work, the several contracts could and would have been completed at much less cost and expense, before the season had become unfit for that kind of work, and by the 1st of November, 1881. "9. That the work was conducted by the employees of the defendant, after it was taken out of the hands of the plaintiffs, in a negligent, careless and reckless manner, both as to the manner of doing the same and making payments therefor, by reason of which that part of the work was made to cost at least twenty per cent. more than it ought to, or would have cost, if it had been done prudently and with proper regard to the rights of the plaintiffs. "10. That a fair estimate of the work done upon the contracts at the prices agreed upon, and for extra work, and including reasonable estimates for losses on account of mistakes and delays, would have been $103,500. "11. That a fair estimate of the money actually paid by said railway company to Donnegan & Co., and properly paid in the completion of the work under the contracts, would not exceed $90,368. "12. As a conclusion of law upon these facts and the evi |