, 1873-07-20
Tl1K RAILROAD CONSTRUCTION SUIT.

The NlotioI Tor II Now Trin1 in Tho Scy-
,l1"ur Y. Phillips 4 Colby Constrtlc-
taOn Company Suit Dvcrrlllcd-.Elle
Liabilities Of tho Construction Cons
pnmY under Its Contracts.
In n. z. Seymour Il Co. v. Phillips Il Colby
Railroad Construction Company, III tho United
States Circuit Court, yostcrday, on motion for
new trial, His Honor Judge Dodgott refuHcd tho
motion and gave Judgment for Tho full amount
Of tho verdict found by tho jury. Tho proceod-
inga had heretofore IN this suit are familiar to tho
reador. having boon fully reported in The TR1n-
usE, and nccd not DO again published.
His Honor in efYoct said that the jury In ths
casc found for tho plaintif damages S107, 1854,
and also found q Brccinl verdict under tho direc-
ton Of tho Court for the sum Of s11 900 odd, Gas
now fully appears bolow). Tho defendants
moved for new tria1, alleging certain errors OF
the Court in directions to tho jury; TINT the yer~
dict is contrary to tho oyidonco as,tl tho law Of
tic oaso; that the Court erred in admitting i'll
competent tostimonyola tho part of tho plaiutifs;
forod by the dcfondnnt; TINT tho Court erred in
refusing tho several prayers for instructions OH
tho part Of tho defendant, and that the Court
erred in giving Instructions to the jury rs
TO e aI anS Gt yer poeat
claimed by the plaintiffs for extra work dono on
Sections DO to 49, for tho excavation Of which It
was contendod that all agreement had boon en-
tored into between plaintiffs mud dofendants,
through tho firm Of contractors on the ono hand,
aud Mr.. Phillips, President Of the Phillipa !;
Colby CONSTRUCTION Company, Oil tho Other in
accordance with which agreomont, tho method
OF performing the work on these SECTIONS then
employed, waa changed for moro advantageous
excavations formerly dono by toamB burrows,
otc., boing substituted by . temporary railroad
train, Plaintiffs contontlod that tiA oxtrh work
waB to be paid for by defendants, at such rricos
regular statements. 1ndood, the Chief Engineer
did examine this work. aud plaintiffa claim they
proceeded undor his direction, and duly kopi all
account. When the nniou1it for extra work nlono
tho Chief Engineer to include TINT sum III is osti-
matcs, but ho refused to 10 80. At tho time the
CAUSE was On for trial, the Court did cntertaiu
some doubt rs to whether this claim was within
whether tito plaintiffs should not lavo brought
o special suit against tho defendants for tho ox-
TIN amount clnimod. But since TINT time, upon
q further examination Of tho contract, the Court
had found thAt it was stipulated in substance il
not in SO many words, that any change iu the
work undertaken Under tho terms Of tho con-
tract. and any operations that might afterwards
be taken for tho better performance OF the work,
the prices, ahnll be undertaken under the supor-
vision Of tile Engineer, md tho rates bo fixed by
him. This special work was clearly undertaken
by tho plaintiffs under the operations ef this pro-
Chief Engineer, boing cognizant of tho work,
charged, and tlle amount duly included iu bis
estimation and il he had dono this. and thore
had beon ANYTHING wrong in tho PLAINTIFF
Therefore tile Court held that it was right for
the Plaintiffs to bring suit, and TINT this claim
fairly formed pnrt OF tho suit. This had boon
loft to the jury, and they had found al to the
amount due.
As to tho points made against the general yer-.
dict, tho Court, utter duo consideration, could
only say lo Thought that sho Testimony sustain
ed tho verdict. Exception waa particularly
cent retained out Of tho estimates until tho
satisfactory completion Of tho work, and second,
to the itom Of $4,000, agreed to 10 paid by de-
tondants to plaintiffs on tue compilation OF tho
s 1eor ths ous to be ncuded aan % te
plaintiffs damages, depends upon whothor
the defondant WAS guilty Of breach of con-
traet,-in othor words, whether tho defendant
had beon the cause of the work not proceeding
plaintiffs is, that tho defendants failcd to pay
their monthly estimates forScptomber and Octo-
Dor ~, and thnt, sololy in consequence Of such
failure plaintiffs were Obliged to stop, work, aud
contract that tho plaintiffs wero to be paid
monthly, upon estimates to be furnished by tho
Chief Enginoor, and it was not to 10 expected
that, il tho defendants failed to pay them tho
forever TO go OH with tho work. Tho evldouce
showed that, from combination Of calsos tho
defendants became at last unable to mako their
rcgnlnr Payments and. III soon as that fact be-
camo fully established, tho plaintiff was, in tho
opinion Of tho Court, justified in considering
tint tho contract was Mt MI ont, and in bringing
suit against tho defendants for tho recovery
Of such moneys aa should DO found to
be due to thenl. lIe thonglhat they
si5S spa Was part n ot ssaps IS Which te as
fcntanls agreed to pay plaintitfs OH the latter
assuming tho contract Of Hopper, boyle l. Co.
Fifteen thousand dollars Of this was paid at tho
time tho contract was mado, and tho balance
plaintiffs allowed this to remain in the hands Of
tho defendants as u guaranty for tho completion
OF tho work. When tho defendants prevented,
BY thoir own broach Of the contract, the plain
titfa from going on with the work, tho lattor
woro justified in including this amount in the
sum sued for. The aggregato which tho Uorrt
hold tho plaintiffs entitled to site for therefore,
were:
Amount due by tho estilnatca a...."...,....$8D0o GOO
And tho balance q bonus retained Iy dsiona- s
Together viii ti!o extra work iiSVS ii
Tho jury had found n verdict for ouch portions
of ths slinl as thoy discovered by oyidonco to
DO duo. Tho Court could not say, as this was q
question purely Of fact, TINT tho Jury Ind found
verdict for too large an amount. The motion
Defendant appeals.
Tho following wore the special findings re-
forrod to-: Had defendant. al tho time of the
breach alleged III plaintira' declaratlon, waived
that timo to complete certain parts Of thoir cou-
tract within certain ti1neA III tho contract mon-
toned, which tinso had thon olapsed aud wore
tho plain!ilrn ut tho tino Of said alIcged broach