The Cecil Whig., 1873-06-21
INTERESTING BRIDGE SUIT.
JAMES II. SMITH, use ISAAC r. TRIMBLE,
as.
COUNTY COMMISSIONERS OF CECIL Co.

JAMES II. SMITH, use Isaac r. TRIMBLE,
as.
COUNTY COMMISSIONERS OF CECIL Co.
We have procured the following full and
comprehensive statement of the important
case of James II. Smith, builder and con-
tractor against the County Commissioners
to recover extra compensation for building
a bridge over Little Elk creek, which was
heretofore briefly noticed in The Wig
The suit is important as showing the limit
of authority the County Commissioners
possess in binding the county by their acts.
This suit, which was first docketed in
1861, in Cecil County Circuit Court, and
brought to recover sum under 500 for
extra work alleged to have been done by
order of the Commissioners on the bridge
over Little Elk creek, at Sites mill, near
ElktOn, was tried two weeks ago, in the
Circuit Court for Baltimore county, at
Towsontown, to which Court it had been
removed for trial recently, at the instance,
it is supposed, of Trimble he having be-
come party thereto, by the assignment of
the claim to him. The claim was increas-
ed in the removal of the suit, to $4,000
and interest.
The result of the trial was, that on
Thursday, the 9TH instant. which was the
fourth day of the trial, a Judgment of non
pros was entered against the Plaintiff. The
jury, being instructed by the Court on the
law in the case, on prayers of Defendant,
rendered verdict to that effect, without
leaving their seats.
Our former fellow. citizen, Richard Gra-
son, ESD, now Chief Judge of Baltimore
County Circuit Court, was on the Bench
during the trial, and was assisted by his
associate, Judge Yellott.
The Plaintiff S counsel were AIeSsrs. Jno.
II. keene, JT., John T. Ensor and Judge
Emory.
The County Commissioners were ably
represented by Messrs. J. T. Mccullough,
counsel to the Board at the origin of the
suit, Richard J. Cuttings, Esq, and one of
his law partners, Col. Mcintosh; the two
last well known members of the Baltimore
County Bar, and Mr.. Cuttings especially
being known rs one of the most prominent
and able lawyers in the State.
Evidence was offered on the part of the
Plaintiff tSmith, witness, to prove that
he (witness) had, before the masonry was
completed, called the attention of the Com
missoners to the fact that the bridge
would be too low if finished as per con-
tract that two of the Commissioners O.
VI Evans and J. +. Stephens coincided
with him upon being shown the fact on 4
visit made to the bridge for that purpose,
ordered the masonry increased in hight,
and promised payment for the same in
addition to the CONTRACT price, which was
80, 2,S50.7S; that the increased hight was
Of ol,,t nd
road way, which constituted the basis Of
this claim, and that the wood work of the
bridge, as erected and flushed, was four
feet higher than the original contract called
for. He further testified that J. j. McCul-
Tough, the other Commissioner agreed that
the increased hight of the masonry was
necessary.
L. D. Christopher testified that he work
ed at and about the bridge during its erec-
ton; was present and heard the converse
ton between Stepens, Evans and Smith,
referred to by Smith, and that Stephens
and Evans promised to pay for the extra
work. Cross examination weakened this
testimony materially.
a Mr.. Shoemaker. civil engineer. testi-
fed that he had measured, by Mason's
measure, the masonry of the bridge as it
stood in January last; that the hight of the
abutments, (Which, as defined by him,
reached SO the floor of the bridge was,
including the depth below the bed of the
creek, IS. feet on one side, and III feet on
the other side of the creek to the chords
or string pieces, and that the contents of
the masonry was 651 perches-about 100
per cent more than if built to the spectica-
tions in the contract, the same being true
Of the roadway. His measurement of the
hight was understood to have been made on
the face of the wall and for the purpose of
computing the amount Of masonry in
Perches.
General Trimbe testified that he was
present and saw Mr.. Shoemaker make his
measurements; that they were made cor
rectly and at his instance; that the term
abutment included, technically, the entire
stone work and roadway at the end of a
bridge, and that the wall upon which a
bridge rests is only the face of the abut-
ment. He also testified as to his connec-
tion with the case by the assignment of
Smith, referred to above.
The witness on cross examination, gave
4 striking instance of his bias, by first ad-
mitting that Prof. Mahan was good au-
thority in civil engineering, and when the
Professors book was read rs to what con-
stituted an Abutment, showing different
definition from that given by the witness,
attempting disparagemeut of the au-
thority.
On the part Of the Commissioners it was
proven that the abutments, technically
considered, according to the authorities, as
the support for the wood work and extend
ing from their foundations to the chords of
the bridge, were not built higher than the
contract required; that the perpendicular
hight now, from water level to said chords
varied but few inches from feet the
hight required by tho contract; that in the
origin of the suit, and prior to that time,
in conversation with witnesses, and in
their presence with the Commissioners, he
did not claim that the wood work of the
bridge was higher than feet above water
leycl, or that the Commissioners had order
ed the bridge to be built higher than called
for in the contract; but that his claim then
was, that a portion Of masonry, built for
the support Of the roadway under each end
of the bridge floor and on the top of the
abatmepts. was not included in the con-
tract; that the Commissioners rejected
this claim upon, the ground that his con-
tract required the completion of the bridge
in womanlike manner according to, and
as implied in and by, specifications and
plan submitted by him. 1t was proven,
also, that Smith, during tbs construction of
the bridge, proposed to another contractor,
then engaged in erecting another bridge in
the county under similar specifications,
that he should make similar claim for
extra work for this masonry built as de-
scribes on the abutmepts.
1t was further in proof, that the Com
missioners, Messrs. Evans and Stephens,
who were witnesses in the case, had never
given Smith authority to increase the
hight of the bridge over that fixed On the
contract, nor promised pay for so doing,
but that they had considered the work
done, and claimed for as extra, part Of
the contract, and had only promised to pay
for it in case it was found not tc be pro-
y;aed for in the contract.
The present hight Of the bridge ahare
water level, and the quantity of masonry
as usually computed (solid measnre) was
also in proof,-the contents by this meas
urement, being 100 perches less than by
the measurement made by plaintiffs wit
ness.
The Court, through Judge Grass:., grant
ed the following prayers, offered and very
ably argued by Messrs. R. Cuttings and
J. T. Mccullough, Esqs., on behalf of the