3. But where it appeared that the company were accustomed to make monthly payments to their contractors, upon the estimates of the engineer, at the end of each month, and that they had so dealt with the plaintiff, it was held that this must be considered the rule of payment under the contract, established by mutual consent and binding upon the parties.1

4. A contract to build "riprap" wall for fifty cents a cubic yard, in the absence of proof of any general usage or uniform custom which could control the mode of measurement, was held to imply payment by the cubic yard after the wall was constructed.2

*SECTION XIX.

Remedy on Contracts for Railway Construction.

1. Recovery on general counts.

2. Amount and proof governed by contract.

§ 123. 1. It is a familiar principle of law applicable to contracts for the performance of work and labor, that if the work is done so that nothing more remains but payment, there is no necessity of declaring specially upon the contract, but the recovery may be had under the general counts; and it will make no difference in this respect that it was not done within the time prescribed by the contract, if the work has been accepted by the other party, or the time for performance extended by such party, or the work has been done upon some permanent property of the other party, as in the case of building a railway.1

2. But ordinarily the contract will govern as to price and other incidents, so far as it can be traced. But where the party for whom the labor is performed wilfully hinders and obstructs the progress of the work, it has been held he was liable, as upon a quantum meruit. But in such case the party must prove the performance of the labor, by such proof as would be competent in an action on the special contract, and cannot treat the dealing as if it had been matter of account from the first.1

421.

2 Wood v. Vermont Central Railw., 24 Vt. 608.

1 Merrill v. Ithaca & Owego Railw., 16 Wendell, 586; s. c. 2 Am. Railw. C.

SECTION XX.

Mechanic's Lien.

1. Such lien cannot exist in regard to a rail- 2. Opinion of Scott, J.

way.

*

§ 123 a. 1. It has been considered that although a public railway may come within the literal import of the terms used in a statute, to secure material-men and laborers, by what is denominated a mechanic's lien upon "buildings or other improvements," yet that the public have such an interest in public works of this character, that it cannot reasonably be presumed that such terms were intended to include the bridges and culverts upon the line of a public railway.1

2. The language of Scott, J., shows the ground of the decision. "Although railway companies in some respects resemble private corporations, yet, as they are organized for the public benefit, the state takes a deep interest in them, and regards them as matters of public concern. The establishment of this railway is regarded as a public work established by public authority, intended for the public use and benefit." The learned judge argues, that such a lien to be effectual must be liable to defeat the object of the work, and therefore, and as the legislature have provided a specific remedy for laborers, it is not to be supposed that a mechanic's lien also exists in regard to the structures on the works.

SECTION XXI.

Remedies on behalf of Laborers and Sub-contractors.

1. Sub-contractors not bound by stipulations | 3. But a sub-contractor cannot go against the of contractor.

2. Laborers on public works have a claim

against the company.

proprietor of the works, although laborer employed by him may.

§ 123 b. 1. A sub-contractor who has completed his work to the acceptance of the engineers appointed to pass upon its sufficiency, is entitled to recover of the contractor the sum retained upon his

1 Dunn v. North Missouri Railw., 24 Mo. 493.

estimates, as security for the completion of the work, notwithstanding any deficiency in the performance of the contractor, whereby he is himself unable to recover such deficiency of the company.1

2. By statute in many of the states, the workmen upon a railway, although in the employment of the contractor, have a claim for any arrears of wages, not exceeding a certain period, upon the company, and this provision has been held to extend equally * to workmen employed by sub-contractors.2 And the provisions of this statute being only a matter of general police, will be equally binding upon all railway companies, whether chartered before or after the passing of the statute.2

3. But the sub-contractor himself cannot pass by his immediate employers and maintain an action against the principal proprietor of the work.3

1 Blair v. Corby, 29 Mo. 480, 486.

2 Grannahan v. Hannibal & St. Joseph Railw. Co., 30 Mo. 546. See also McClusky v. Cromwell, 1 Kern. 593; Kent v. N. Y. Cent. Railw., 2 id. 628; Peters v. St. Louis & Iron M. Railw. Co., 23 Mo. 107.

3 Branin v. Conn. & Pass. Railw. Co., 31 Vermont, 214; Lake Erie, &c. Railw. Co. v. Eckler, 13 Ind. 67. See Boswell v. Townsend, 37 Barb. 205.

* 446

§ 124. 1. By the English statutes, companies are created who own the railway stations, &c., merely, and who are empowered to demand certain tolls of other persons, or companies, for the use of such road.

2. In such cases, if illegal tolls are demanded and paid, the excess may be recovered back, as money had and received, to the use of the person paying it, upon the general principles of law applicable to the subject of tolls, and the demand and receipt of excessive tolls.1

Where the English statute 2 gave the company the right, where any person should fail to pay the toll due upon any carriage, to detain and sell the same, it was held incumbent upon the company first to demand the sum due for toll, and that this was a condition precedent to the right to sell under the statute.3 It was also considered here that a charge for transporting carriages back is not a toll, but something which may be compensated by special agreement between the parties; and if it be demanded as * part of the 1 Fearnley v. Morley, 5 B. & C. 25. See also this subject very extensively examined in Centre Turnpike Co. v. Smith, 12 Vt. 212; post, § 143. Tolls are a payment for passing along the line of the railway, and should be received with reference to the number of carriages passing. Simpson v. Denison, 10 Hare, 51; s. c. 13 Eng. L. & Eq. 359. 28 and 9 Vict. c. 20, § 97.

3 Field v. Newport, Ab. & Hereford Railw., 3 H. & N. 409.

toll, being an illegal claim, as such, it vitiates the entire demand and renders it illegal.

3. And the same rule has been extended to the recovery of money overpaid upon an exorbitant and illegal demand of freight or fare by railways. And the recovery may be had, although the person paying it did not tender any specific sum, as due, and although a portion of the overcharge was on account of what was claimed to be due another company.4

4. And under the English statutes, packed parcels of the same class are required to be rated in mass.5

5. Most of the business upon public railways, in this country, and in England, at the present time, is almost of necessity transacted by the companies themselves. The very nature of the business seems to require absolute unity in the management and control of the traffic, and especially in this country, where a large proportion of the roads are operated upon a single track, requiring the utmost watchfulness and circumspection to avoid collisions. We suppose the idea of operating a railway, with large traffic, in England, upon a single track, would be regarded as too glaring an absurdity to be seriously entertained, although they have some unimportant single track railways. But in this country it is rather the rule than the exception, and many of the continental railways in Europe have only a single track.

6. The matter of tolls upon railways is a thing almost unknown in this country, and very little practised anywhere at present. But the English special acts, and the American railway charters, very often fix the maximum of freight and fare which it shall be lawful for the company to receive, and if tolls are allowed to be taken of other companies or persons, these also are limited.

Parker v. The Bristol & Exeter Railw. Co., 6 Exch. 702; s. c. 6 Railw. C. 776. See also Snowden v. Davis, 1 Taunt. 359; Atlee v. Backhouse, 3 M. & W. 633; and Spry v. Emperor, 6 M. & W. 639, where the general subject is discussed. In Parker v. The Great Western Railw. Co., 3 Railw. C. 563, the very point is decided. Crouch v. London & N. W. Railw. Co., 2 Car. & K. 789; Crouch v. Great Northern Railw., 25 Eng. L. & Eq. 449.

Parker v. The Great Western Railw. Co., 11 C. B. 545; s. c. 8 Eng. L. & Eq. 426. This subject of overcharge and the right to recover back the excess, is extensively discussed in this case, and in the case of Edwards, Assignee of Edwards, v. The Great Western Railw. Co., 11 C. B. 588; s. c. 8 Eng. L. & Eq. 447; Crouch v. Great Northern Railw. Co., 9 Exch. 556; s. c. 25 Eng. L.