xt70zp3vt865_246 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Kentucky Beaver Collieries et al. v. Mellon and Smith text Kentucky Beaver Collieries et al. v. Mellon and Smith 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_23/Folder_9/3745.pdf 1918-1923 1923 1918-1923 section false xt70zp3vt865_246 xt70zp3vt865 , .‘ 1t .
'.‘ . 3" . ‘ '


V. APEEAL F3039; E‘LOYE 01303113 WURT.


In the autugn of 1918 the EVans. McVay & Blair Company of
Chicago leased a tract of coal land on Brater Creek in Floyd County
from Walter S. Earkins. They organized a corporation known as
the frater Creek Coal Company. On the «ay that the lease was
taken tho Blair Company sublet the property to L. V. Rice. and
turned over to him the corporate charter of the Erater Creek Coal
company. Rice made preparation to open a coal mine on the lease
and employed Richard Vose. an engineer of Shicago. to superintend
tho project. The appellees were contractors, and on Rovember 11.
1918. they entered into a contr-ct with "L. V. Rica. Trustee for
the Brater Creek 3031 Oompany." to construct a railroad siding
at the mine "according to plans. profile and section thereof. as
prepared by G. G. EVana. Mining Engineer." agreeing to do the
work "in a first-class. workmanlike manner," at Specified prices
\ .1-

 Z to be paid for the diffcrcnt kinds of work. It was agreed that
payments for the ccmplctcd work less ten per cent. should be made
semi-monthly. according to the estimates of the engineer. As
the work progressed appellecs were paid according to contract.
and on its completiothhere was due them. according to the final
estimate. $2,106.95. Bafore this sum ccuid be paid it de.
veloped that the operation of trains over the track had cauced
the retaining wall to crumble and necessitated the closing of
the track for repairs. Baymentigg‘the final estimate having
been refused. appellees instituted this action against Brater

’ Creek Coal Company. Kentucky Beaver Collieries. and L. V. Rice
to recover it. Defendants resisted the suit on the ground that
the work had not been done according to contract. and asserted
_ a counter-claim of more than $5,000.00 in damages reculting.
as they alleged. from defective construction. They also alleged
/ that the contract was made with L.V.n1ce. and that neither of the
other two defendants was liable thereon. and further. that the
7 Kentucky BeaVer Collieries was an innocent purchacer of the
: leasehold for Value. These defenses were traversed. and on the
trial a Verdict was returned in favor appellecs for the amount
of their claim. upon which judgment Was entered. to reVerse
which the Prater Creek Coal Company and the Kentucky Beavar Gol-
lieries have apgealed. _
It is contended that the Verdict is not sustained by the
‘ evidence, in tth Ehe contract required the work to be done in v
"a first-class. workmanlike manner." and it was not so done.
, On this issue made in the pleadings axtenaiva proof was taken.
‘N/\ ‘.r Appallees admit that. if appellants' contention is maintainable.
i ' ,2, 4

 they are entitled to damages on their counter-claim. representing
the cost of repairing the wall. Under the contract the work was to
be done according to plans and profiles furnished by the engineer,
0. G. EVane. It appears that Evens neVer furnished any plans or
‘ profiles other than a pancillee Sketch. showing the width that

the wall was to be built in its Various stages of construction. “
He admitted that he vieited the work freiuently and made the es-
timates upon which payments were made. and that he then believed
the wall was being erected conformable to the sketch that he had
deliVered to the contractors. But he said after the wall had
fallen he made additional inepectione and measurehents. which
showed that it had not been built according to directions. The
latter.conclueion was etrenuouely‘denied by appelleee._ “oreover.
they te tified that they frequently stated to Richard Vase. who
was in charge of the entire project. that the well Was not heavy
enough. and to these suggeetione Vase replied that he had charge

‘ of the work. was in e hurry to have it completed. and it was ‘
their duty to build the wall as he directed. lhey further said
that Vose saw the work twi(e a day. examined the well when it was

' going up. and eporOVed eVery feature of its construction. The
eivdence indicates that it was difficult at tines to get in touch
with EVans. and that he did not visit the work as freouently as
it was contemplated that he should. Hie lexit; in this particular
was commented on by the contractors and Vose. anfl, with a view of
avoiding the delay that was inevitable from his conduct. it appears
that Vase took upon himself the supervision of the work. Appellees'
evidence shows that the wall was not only as thick as. but in

_ . . -3-

 many places was thicker than. the requirements of the sketch
I furnished by ”vans. - ‘

The cement used in the masonary is said to have been 01 an
inferior quality. and that fact . with the insufficiency of the
quantity. is relied on to sustain the claim of cofectiveness. , ‘
In combating this claim appellees emphasize the point that appel-
lants insinccted the work as it was in progress. and were able to

_ and did ascertain what quantities of cement were need. notwith-
standing which they were satisfied with the work and apprOVed the
estimates. *hey furthermore say that the cement was of the brst
quelity.and the proper quantities were used. On each of the
numerous issues touching the claim of defectiveness there was evi-'
dence supogzting the Hivargent views of the parties. #he questions\\

. were fairly submitted to the jury under appropriate instructions. )

\7 0n the other hand there is an abundance of evidence
justifying the conclusion that the final estimate was correct, and
“that the nail Was of the recuired thickness an& in every respect
conformed to appellants' instructions. On this issue the jury
. accepted apocflees‘ evidence. one we do not feel that there is

 'C I , 4
t . ‘qerrent for disturbing the verdict.
Einally it is contended that the court should have di-
rected the jury to return a verdict for the Kentucky Beaver 001— -
lieries. -beoause that company was not a part; to the contract. but [
“ was an innocent purchaser for value. In our opinion the conten-
tion is not sustainable. fihile there is evidence to the effect .
7K\that the “entucky Scaver Gollieries absorbed the prepertias and ‘
‘ assets of the firater Greek Coal Company. it is not shown that it .g
curchaeed.them for Value or without notice of this liability. L.V. 5
nice Was the trustee of and a large stockholder in the ‘ratsr Creek ;
Coal Company. He was also largely interested in the hentucky I
Beaver Collieries. It appears that after Rose left the mine ‘
Whittier. an engineer who seems also to have been president of ‘
, the Kentucky BeaVer Gollieries. assumed the superfision of ap— :
pellees' work. as acted in respect to the supervision and esti- ”J
notes just as Vose had acteaiw That Company manifested its inter-
est in the controct.by asserting a counter-claim against the do» a
fendants for defective construction. In View of these circum- 1
istances. it is our opinion that the Kentucky Beaver Collieriss
' hannot be treated as an innocent purchaser. but must be regarded '
I has having absorbed the Erater Creek Coal Company and assumed its
‘ iiabilitias in taking over its assets. Harbison. etc. v.
' hernia-ma. 156 Ky. 44; Kentucky D. a. n. Co. v. rebb. 181 Ky. 90. x
r gfié Barceiving no errors in the record prejudicial to ap- '
, [ ‘6';pellanta' rights. the judgment is affimed. ' -
l, mecca D. HARKINS . FOR firmware.
‘ A.” J. on. FOR renters.

 7‘, "we. ' i“
if \
VTo the same effect, see _ .
' Herein vs. Harrington, 11 Rush 36?
r .:1 ::A 5:1 «as 1.
”via is. "milling, ’79 Am. ~‘sc. 45"?
Thus it will be seen that the Kentucky Beaver Collieries
can not succeed upon its plea as an innocent purchaser, because
in the first place its plea is not sufficient, nor is there any
' proof that it has paid one dollar for the property. on the
contrary, it is admitted that L. V. Rice was Trustee of all the
property of the Prater Creek Coal Company and one of the large,
if not the largest stock holder in the Kentucky Beaver Collieries
and likewise, whittier, one of the Engineers who supervised the
work of Mellon and Smith, and made the settlement. ascertained
the amount unpaid on the contract, and reported the same to Rice,
is President of the Kentucky Beaver Collieries and local
manager of the Prater Creek Coal Company. (Transcript
Page 75); a rather innocent sort of fellow, Manager of one and
President of the other, and with full knowledge of all the facts
he organized the Kentucky heaVer Collieries for the express
purpose of taking over the property and assets of the Prater
Creek Coal Company for an issue of stock in the purchasing
company. Instead of its being a bona fide purchase of the
_ property for value, it is a mere merger of the assets of one
company into another. a thing this Court has repeatedly held was
a mere merger and puts the liabilities of the selling company upon
the shoulders of the company into which it merges. _
Kentucky D. s W. Go. vs. ?ebb 181 Ky. 90 i
Harbison & Valker vs. McFarland 156 Ky 44 .
Altoona vs. Richardson Gas e Oil Co. 81
Kane. 717 - 26 L. R. A. (n.s.) 655.

Hard vs. flew York &0. Launflry Go. 16? W. Y. 89
Wilson vs. Aeolian co. 6% App Hiv. 558 1?0 my. 618
?30rt§’l61‘1’1 Paeific $3.13.. C209 Vii‘ro 330;?(1 228 37953» 503:
55 Sup. Gourt 560—57 flaw id. 951.

a careful ra&fiing of the facts in fihis record, ané refer—
anoe ta thesa authoritias will convince the Court that fiafendant
is not an innocent purchaser or a bona fiae holdar of the proper-
ty fer value and that the jufigmnnt $hon1fi ha affirmefi.

I respectfully urga an affirmance of tha judgment with

Afigorney Tor HeIIon & Emiffi.

 4 -‘:’2,1"’V\>2:.V
' vs. 33331233) 32*.):2 «r'rmzs
MAY IT 123.123.3523: @3333 003mm: '
Briefly stated, the facts out of which this controversy
arose are, that on the 11th day of November. 1918, L. V. Rica,
as Trustec for the Frater Creek Goal Company. acting through one
Richard Vase, his contracting engineer. entered into a contract
in writing with T. T. Mellon and T. w. smith, partners. doing
contracting work as Mollon & Smith. The contract as shown in
the record provided for the construction of a mine siding for the
Prater Creek Coal Company near Prater Creek, in Floyd County,
Kentucky, Ehe contract provides that for excsVEting the road
bed which included haul and making fills, the rratcr Crook Coal
Company was to pay the contractors 31.50, per cubic yard; excavat-
ing rock for retaining wall, $3.50; ratio maconcry Satin cement
$9.00. per cubic yard. and breakage for $1.50, per cubic yard;
box or pipe culvert for mascncry work, the cost plus 15%.

 Soon after the making of this contract mellon and Smith
entered upon the work an& proceeded to blast out rock from tho
base of the mountain so as to make room for the grade and roll-
roafi side track book of a retaining wall, which was to be built
to hold the fill in place. During the pragraos of the work,
Hollon unc Smith frequently aemondod of Mr. Vase, the Conctruc~
tion Engineer in charge of and supervising the work, that he.
furnish the specification and details of the work as oontomplatoc
in the contract which he mover did do and which 0. G. Evans, the
Mining Engineer, hover aid. The only thiog Voso aid, was to
furnish a small pancil sketch of the retaining Wall or rather.
what was called a section, on a small yellow piece of paper
showing the different thicknesses the call should be built from

‘ top to bottom 12 inches at the toy, two foot below it was set
off to 18 inches, anfl four foot below a set off to 24 inchos,
which was the last sot off abovo the footing course. There
Was no specifications whatever provided which showed the differ-

. out parts or mixtures of materials used in the construction of
this wall; that is, there Was nothing that showed the quantity
of cement and sand to be used in making the mortor in which to
act the ruble stone and it Was left under those circumstances to
the decoration of Mr. Vosc, the Rngineer in charge of the con—
struction. The records show and it Was a fact, that Vase
had charge of not only the work of constructing the siding and
retaining wall by Mellon and Smith, but also the work of install-
ing the entire plant, including tipple, head houses. tram ways,

 atoo, not all of tho time he was working this outsido work, but
was on the job whoro Mellon and Smith were employed, morning.
noon, ané evening, most every day the work was going, while ho
Was there. an& after he quit, C. C. Whittier, Prooident of the
Kontuoky~Beavor Colliorios and also President of The Prater Creek
Coal Company, took charge of the work of supervising the con-
struction of the fill until its completion, which was only a few
oays. The Hall, of which complaint is made, was con-
struetod of rublo stone bonfiod together with cement on& sand
and the court will boar in minfi that it was materially to the
adVantago of mollon and Smith to buila the wall 68 large as
they ooula possibly be parmitted to build it as the outside
oouroo, or Veneer of tho Wall was the expensive particular part
of it, and the thinner it was built tho loss yardage and less
money they obtained whereas, if they were pormittod to build it
at a substantial thickness they would haVo mafia much more money
than as constructed. ' This is mafia plain in the testimony of
W. T. Mellon. The Coal Companies were anxious to get the
siding completed anfl in operation by the time they were roady to
, bring the cool down the mountain side to the hippie whore it woulfio
be dumped into the railroad cars and instead of Voso, the Con-
struction Engineer, permitting Mellon and Smith to bulld.tho
wall hoaviar. ho Was constantly changing the~plans. giving
different directions and urging the completion of the wall so
he could get by with his work and get away. He maé solo by
Mellon and Smith that the wall as constructed was not thick

 enough to stand, and he argued with them that a four inch wall
would hold.

WhaEGVar may hon boon Vooo's motiVQ in changing the
plans from time to time and directing the work dono as it woo
‘flone, it nevertheless remains a definite proven and ostablishaa
foot that if the wall wag insuffioioat. it was due only to the
manner in which Vose directoa its construction and not to any
defeatiVo material or workmanship in the wall. ?he con-
tantion of the appellants is that the wall was not oongtruotefi
in a "goofi ano workmanlike manner" as rmouireé by tha eonaraot,
and that for that reason it failed to stand tho.prosauro of
tho Woight of the looomotiveg anfi oars when run upon it a few
oays after ito completion.

True, it did not stoma, which most assuredly rogultea
from EWo causes for both of which appellanto themselves are
rasyonsihle; Shot is, in raouiring it built so slender, and
secondly, Vase compelled the contractors at the particular
point whore the wall gavG way to pile a large amount of haavy
stone in on a fill of soft dirt and mud that had bean run in ‘
behind the wall by rains or slips from aha mountaineiae and
when the engine pasood over this soft airs fill with stone on
top,the fill naturally gQVG aown anfi caused the wall to bulge
out in front. Eot only this, but this mua fill and rock

I pile was objected to by the Contractors as shown in tho testimony
of i. T. gallon. rocorfl, page “___, and ordereé to ho acne by
Vase, notwithstanding the advice of the Contractors that it was

 insufficient. Anathar reason why the wall gaVa way, was
because of the fact that tha upper side of the railroaa track at
the back 9f the fill was of salia rock Whara tha cut haé been
1111311111: 0111‘. of the. 13911.11 111111 and the 121118 11111 on it and

there cauld be no giving on the uppar 3119 but threw all the
Weight 0n the lOWQr siée againgt the retaining wall and the record
3h0W$ that aftqr Hallan and Smith had complete& the sectiona of
the wall whare it gave way that tha pdal company's employaaa,
while the cement mortar W&S still gruan aha not set sufficiently
hard to stand the teat, put some extremely heavy high power
fiXfilOSiVfiS cf dynamite against this eliff on the back side of
the fill only twe1VG 0r fourteen feat from the wall and rapeatad

, theee shots so often that it created aueh eoncussion anfl jar of
the retaining Wall that it broke the taxture and tenacity of the
cement between the fable stone after it 111 set enough that it
would not again reset. In other worfis, the acal companies
by their own negligence and reokles3ness, injured the Wall so _
‘ that it c$uld not stand; and than come into court and sank by

a counter claim to hold the contractors responsible for their
own neglect and wrongdoing. Evary question of fact in-
volved in tha record was clearly OOVared by the instructions
which submittea to the jury the various phases of fact ané the
jury having found in favor of the appellee, the finding shoulé
not be disturbed and the judgment therein entgred shauld be .

The principal issue in this case is the question of
a fact as to whether the work contracted to be done was done in
a good and workmanlike manner as contemplated in the contract,
and if not, who Woe to blame for the failure to so construct
the retaining well? No doubt, the wall as oonetruotee was
too narrow no otano the proeouro oonoiéoring the condition of
‘ the fill hehiné it, and the fact of the upper side of the £111
resting upon solid rock. The reason why the well Was not
built strong and substantial. and the deeire of the Contractors
to so build it is apparent when the Court thoroughly unfloretende
this record. The Prater Crook Coal Company ano the Kentucky
Beaver collieries were in a hurry to get the job oompletafl and
in shape to otort shipping coal. anfi Richard Vase, Supervising,
’ Engineer, as well as Whittier, who sueceedefi him on the work.
Were both anxious to complete the contract one the coal company
was desirious of avoiding as much of the expenses incident to
the construction of the well as poeoible. while on tho other
hand, Mellon and Smith, the Contractors, were anxious to build
the wall large and substantial as possible for the reason that
they were paid by the yero for the quantity of stone used in the
construotion of the wall and the some amount of labor and care
was required to set small stones in cement as would heVo rSQHired
to set larger Stones. and at the some time, the yardage of the
thin well would haVe netted less vrofit to the Contractors than
the larger wall. so that if we take the selfish view of the

 situation and this sometimes wields a wonderful influence in
the conduct of men, we must efimit that the Contractors, Hellon
and Smith would have been anxious to construct a large and sub-
stantial wall where, for the same reason the cool company Wee

‘ interested in a smaller and lese substantial well, because it
cost less money. 3“

It is charged in the ploeflinge by the defendant 0031
companies, that the wall was defective and that the defects were
latent or hidden one thie being an affirmative plea, the coal
companiee have the bureau of showing that is was a latent defect
of which they did not know anfl could not by the exercise of I
reasonable care have known at the time they inspected, received '
enfi accepted the contract 38 complefied.

It is shown by both the Contractors one their Witnesses,
that the work was cone in a good aofi workmonlike manner except,
both Kellen and Smith eoy that the Wall woo too slender and
that they both advised Vooe and Whittier against the construction
of it in thet~woy, but that fihittior and Voee, who supervised

, it, had it done under their orcers in the obeenoo of specifica-
tions vroviding how it should be done ee contemplated in the
contract. (3111 of Evidence Pages 98-99) 3 NereOVer,
this defense,that it was defective one the defects were latent
or hidden was thoroughly dinTOVen by the foot that both V096
and Evans, the Inspectors mentioned in the contract, who was
Engineer. and whose duty it was to provide specifications and
inspect the work, went over it a number of blocs, had opportunity
to and did inepeot the wall while it was built up and standing

 oxposaé to plain View to both Sveno and Voooo {Eocorfl 101 etc)

It 13 likewiso ohown by aha evidence that Whittier. and some

onhor porgon roprosenting ohe coal companies took Measuremooho

god ingpeotoé the wall while it was expooofl anfi before the fill

was mafia behinfi it. {Bill of Evidence, ?ogo 105). .
Tho attention of the Court is reopeotfully called to

the unoontrodiotod,mo11 prOVQu fact that tho firoi fifty foot

of this wall built by fiellon ané fimifih. before they wofe inter-

foroé with by 3038 ané whittior. woo built strong anfi substantial {

with a four foot footing commas and all the éoubla wali 83006 ;

up anfi stooé tho 263$, but after Vooo rot in a hurry and bo- ;

came oo anxious fio h&Vo the job done bhot he ooulén=fi allow the {

Controctoro So furthof prooooa with a double ooll, ho direcfiofi 1

them to builfi a oingle wall and insisted Shot a toolvo inch wall ;

was amply Huffioient, tolling Céntxactor muith that ho Knew ‘

what he was aoing aha baa built more walls than Smith had over 3

soon. NorooVor, if Hhittier, the chief witness for one E

coal oompanioo, who in his affidavit SWBHIS ho is the agent and 3

representatiVo of both companies, goo in hio testimony baforo the ‘

jury, had no ooonoooioo with tho firator Crook Coal Company, had '

boon_as earoful in seoing to the construction of a strong and

substantial wall as he W88 anxious to shoot it down affior it

was built, this law suit would never had occurea. It is shown

and not contradicted that lhittior took a crew of men and went

to work to widen the sifling by shooting out the solid stone

from the base of the hill at the back of the dirt fill behind

 the wall, and that he used so much dynamite and other high
explosiVos that he shook the entire base of the hill and
created such concussion that it knocked the top stones off the’
upper and of the wall a long distance from where the shots were
discharged and blew such large stones over the top of the wall
on to the railroad track that it broke railroad ties in the main
I line of the railroad company, and this is proven by the testis
mony of Contractor Smith as shown on page 154 and 155 of the
Stenogrepher's Bill of Evidence. Aside from the proof
in the record, any man of ordinary intelligence would know that 3
the discharge of such powerful explosives so close to a green 3
rublc Wall set in cement that had barely set, and exploded 3
against a solid rock base of the Fountain, Would be sufficient
to destroy the texture of the structure and break and destroy
the mortar joints in the cement from one end of the well to the
other. None of the force of these shots could go any other A
way than from the mountain of rock toward and against the wall 3
and this, of course, resulted in practically destroying the wall.
Contractor Smith's explanation of the difference between .
a double wall and single wall and the substantiability of one
as compared with the other is very plainly set forth on page
158 of the Stenographer's Bill of Evidence, and no doubt if Vose
and fihittier had permitted these Contractors to have constructed
this wall as they desired to do, the well would haVc stood the
test of time. on the contrary, the Wall Was builthi the
manner in which it was built under the supervision and orders
of the representatives of the coal company and they should not
.. if ,

 new be permittea fio complain of whét they did them361Ves,
especially after practically dagtroying tha wall.
fiallia firum, a diainteregtad wihnaas, and the Lafiy who .
kept the Boarding House for the coal company at which Vase,
~ Kellen ana Smith took thair mnals, proves an important fact
: conflaeted with a coflvarsabiwn had batwean Contractor Smith mna
Superintendent Vosa, at hat supfiar table. fimith was
arguimg with 7036 few the hailflina mf a heaviar wall and Vase
saifi that ha wanted the wall built a3 he mantea it anfl not as '
Mr» Smith said; anfi that he hafi fione mora of that kind 0? work
than Hr. Smith haa evmr Swag. (atenagraphwr's 8111, page 145)
To the sams effect is the tastimOfly 6f Allen Triplett.
and I. F. Ramey, both of Wham are experiencefl maSOflS, possaasing
long experience in the doing of such wark.
Since as firat ahated, the questions involved were
questions of fact, peculiarly within the province of the jury to
deeiéa, we go $0 the discussion of the legal questian as to
whether or nofi the iSfiflflS Ware claarly gubmittad to the jury by
th@ Court's inatructianfl, and by rafarence to the instructions,
six in number. it will be seam that thay were not only fair and
fully OOVBer all tha issues involVefi, but that they were clear
and easy of intarpetation and not susceptible to any miscon~
struction by the Jury.

 The first instruction submitted to the Jury the correct
and simple question as to whether the work had been completed
in a first class and aorkmenlike manner in accordance with the
plans and specifications prepared and furnished either by
C. d. trons? Eining ingincer, or Eiohard Vose, Construction
tnginser, and authorized the Jury if they so believed, to find
for plaintiff against brator Greek Coal Comrany, the sum of
money sued for in the petitiona

The second instruction submitted to the Jury the question
of thethcr the wall was deficient or defective, and if so,
whether the deficiency or defect was due solely to the manner in
which defendant's supervising engineer ordered it dono,cr to
defective construction or inferior material used therein, and
authorized the Jury, although defectiVe and deficient, if such
defect and deficiency was due not to inferior workmanship, but
to the directing engineer. they would still find for the
plaintiff; and this was proper.

The third instruction authorized the Jury that if the
wall was defective or if plaintiff failed to comply with the
contract, by failure to construct the retaining wall in a first
class. wortmanliho manner and it proVod by reason of such
failure on the part of plaintiff. to eerVe the purposes for
which it was built, than the Jury should find for the defendants.

Instruction Ho. 4, told the Jury that if they found
from the evidence that the retaining wall was not constructed in
a first class workmanlike manner and by reason thereof was in-
sufficient for the purpose for which it Was constructed, and
such defects Wore known to plaintiff and unknown to defendants,

 and also outmittod to the Jury tho oucotion whether the plaintiff
had cooccaled said defects, if any, from the defendants, and

that by roacoo of each concoclod defects, it all become oooloes
and gave way, that the Jury would find for the defondontc open
their counter-claim, ouch sum of money as was the fair and
reasonable cost of re-conctructing the coll in such manner ac to
comply With the terms of the contract; that is, first class

and workmaolike manner.

The fifth instruction told the guy; that olthouch the
wall and siding were not constructed in first class wcrknonlikc
manner and Woro defectiVo, toot if the defect was known to the
defendeots and they with Knowledge of ouch doiect, received and
accepted tho wall and siding as complotad, they would aloe
find for tho plaintiff ouch come of money as the Jury might
believe from the evidence was due and unpaid, not exceeding
tho amount sued for in tho potition, $2105.95, In order that
the Jury might not be mislead into believiog that some act of
accepting or taking poseoooion of the wall was an accaptanco of
it, the Court in Instruction Va. told the Jury that the taking
possession of the retaioing wall after it Was constructed by
plaintiff could not he considered as on accoptence of the work
as done in compliance with the contract or according to the dir-
ections of Eichord Vosc.

do it seems to me that the record is clear and that the
Court has given to both eidos a fair and impartial trial be-
fore an intalligont and properly instructed Jury, and the
dofondante can not now complain of the result of the trial.

 Geing back again to the quaatinm of fact as to whafiher
tha wall Wa$ cemplefied anfi done accnrfling to specificatians,
pyovideé by iicharfi ?989. it is impcrtafit tn consiflar She
tegtiwony 0f fir» ?0$e himgelf as Shown on fags 378. of the
Stanographar‘s @111. Fr. Vase was ask by counsal for the
Gai’endaz’zt, thin; Que: 231210112
“ 2. Tell the Jury whether or nah the wall which '

Vaa uongtruuted by Hellmn 3&6 ’miti umfler fihis
cantracfi V33 0 ngfiructed in compliance with the
Provi$icns ana 0? aka measurem mtg and of the

3:295 safi out in the sactiong furnished them by you?
go 9% far &$ T khaw, up to the time of my leaving
there. they hgfl flame a fairly Tflfifl 50b, aha haé
followed gut tbs plan given.

a. Ten maan they had followed out the instructions

yam had riven as indicated gran this cross section?

A- E suppose 30, yea, air. , "

This game Hr. V038, Supervisim; Engineur of the defendant;
shows alga that he was on thv Work twice each flay;at neon anfl
in the evaning. and that on his vigifi each evening, he habitually
made examinatgon 2g the work. 33d when Hr. Vase Was
egg by 0035861 for the plaintiff rslativn to the canversation

' had with Nro Smith 335 $133 drum, at fiisg Crum's Suppar table
‘ and the quastion as to whether he had made the statement or not,
was put flireet to him ana his aHQWar is found on Page 3?8 0f tha
Stanographer's Bill in ShfiSe wards,
”well. I flon't remamber, it sounds like me."

"E0 uaflesiunta a bona fiéa ywrahaaar it

1% naanafinrv thfit such nurchaaer muat %ave rotted

331% v.423, :nfi thii L9 haVu finfien withflut manica,

nagufil 0? ennstruetive-” 34 Tie. 958.

{fitting the rnla in its very sirvleat form a hnfia fine “urchasa
must ha for Value and ulthguu natiua.

‘.»-15:33:15,983 to 3;:25/ are one thiflaf, hit-3; lilo. 1":73-3: Inquires
paymanb ~ » an fihscluae aaaaratior of she aurahawer from his
funds. Tm fact, the whole protection 19 base: on finfl idea
13. :40 c.1231». Mild. ::)"v'.~“;1" in .':,-.:«L‘ul .'iH-Li‘h‘r} ram”: 150 m 7‘»1W’2‘.Q«":Lmrfi. The
buvuen of $10231; p‘3rwrt i: on feigniaflifi.

'7.‘=.Co.;2"lir.ie‘_f '.;-3 .:'?er .”‘ 2‘:/3‘, ”.1558 3.1.2311: : 17110-
33c$i3n 33 a .onu li.u Muzak; er f3: v lga L333 ahow

ti JifirmaziV: fiffiof t“rt hg % * 3h ”:c‘ ?'*F Lhnh a

CDHLifiBrnELDL- :nyment is un aiflrartive fact peculiar-

. 13 niihifl thu knonedgn :1" mi: psrtv rwlirv it or claim-
lgg advanaags frgm it. It 1; thmggiuro, easy for

:. ', _.. .'.l. ...1,‘ 'r‘x .; .:. E? :'j‘jf ’; i- y? ”::{ilf‘i

1.). .. ..~.) :..-»J V K. .._ u A ...: . o .1 r _ 5 ..LJ-

”To entitle a gazantee no Wrutéeliov -3 ~ bona

11:6 pursuaser he MJJL hays yalfl tJQ ‘12thua money

as wall as have as uirefi aha 19”?1 Ellie slifiori notice;

natise ualora magmann ia uiiest' l L) ddplqu film of

much profioction, tnouxh he an? "S .“v ,?~4 Marv mo-
quirad the legal title.’ 3%