National Republican. (Washington City (D.C.)) 1872-1888, 1875-05-06
THE COURTS.
Supreme COurt-esnsral Term.

several respeetGble citizens, who were witnesses
at the trial. and in the hearing Of sundry persons
on the street, In q loud tone. The colloquium Is
set forth in the declaration with the innnendoes.
The plea IL, mot guilty" ~
The plaintiffs counsel contends that In an 40
ton for Islander It is not essential for the mainten
ance thereof shat the words impute an offense
for which there would be liability TO proseeu.
ton or Punishuspt This is not the criterion Of
At the trial the words were proved BY several
witnesses laid, and the substance OF the charge
BY witness, Mr.. B. T. Morsell, q merchant, as
coming from defendant AFTER suit.
The verbs are actionable. Their force and
virtue do not depend upon what the defendant
intended to have understood by the persons to
whom they were uttered, and what they under
stood from them.
The actual meaning Of the words in the partic-
ular case, and the effective sense in which they
were understood IS matter Of fact is consider
alton for the Jury. II OF doubtful signeation, II
is for the jury TO determine in what sense they
Evidence Of words and conduct after suit
brought is proper in determining the question OF
malice with which the words charged have been
spoken. II the jury are Of opinion from the evil
dence that the defendant meant Substantially to
iDpute charge Of felony, the plaintiff will be
The defendant's counsel defended the excep.
lions they had filed in the case. Messrs. Norris
and O'ConDeIl appeared for the defendant, and
Mr.. Hine for the defendant. The case was not
concluded.
R. Appleman. The case was this: The defend
ants were contractors with the late Board Of Pub
lie Works for the construction of six-foot sewer
on Boundary street northeast, between Second
and Eleventh streets, "a distance Of some $3.50
feet,) at the price Of S37.s7 in sewerage certih-
Gates, or S4 90 cash, per lineal foot. Instead Of
doing the work themselves, they entered, on Au-
gust Is, 1873, into q contract with Mr.. Kennedy,
the plaintiff, "a practical and experienced sewer
buuder,) to construct a sewer, agreeing to pay
him 81, so per Iineal foot, payments to be made
monthly and he agreeing te purchase the brick,
cement, lumber and tools required for the work
Trnr fha daGon danfo Of tal TAD
to be deducted by defendants from the plaintiffs
monthly compensation. By plaintiffs contract
with defendants the sewer was to commence at
such point at or near Second street northeast a.
the lefengineer might direct, and proceed along
Boundary street to such point at or near Elev-
enth street northeast as the chief engineer might
locate q terminus of the sewer. The work was to
be done by plaintiff according to the specifications
and directions Of the chief engineer and his SUBJ
erdnates. Before the plaintiff entered upon the
performance Of this contract with defendants the
chief engineer Of the District set the stakes es-
tablishing the line OF the proposed sewer, along
Boundary street, from point at or near Eleventh
street, to g terminal point at or near Second
street, where he located the terminus of the
sewer. Under the direction Of the chief engineer
and his subordinates, but without any plans or
specifications being furnished therefor by the en-
gineer or his subOrdinates, the sewer was con-
stIucted by the plaintiff, under and in pursuance
of his contract with defendants, from Eleventh
street along Boundary street. The plaintiff had
right, therefore, under that contract to construct
a sewer to the proposed terminus on Second street.
He continued the construction Of the sewer in the
manner stated along Boundary street for a dis
tTnce OF some $3.50 feet, TO point about $50 feet
Hhen in the latter part OF June, 1874, the defend
ant, ApplemaL, who had previously threatened to
piaintif,s contract or break up the contrsc., di.
reeted the plaintiff to discontinue the work, and
informed him that they (the defeudsntsl pro-
posed and intended that they themselves should
do any further work that might be done in the
construction OF the sewer.
The plaintiff declined to obey this direction OF
nd Ann ant ara daa I'D ha
would get an order from the engineers ONCE d.
TectinR plaintiff to stop work on the sewer; and
subsequently, on the Ath OF Ipe, lS14, MT;
the Board OF Public Works. came out to the
sewer, and, assuming authority to suspend tenn
iii TO stop his HorE thereon: and the plaIntf ac
cordingly stopped. The evidence showed that
amer be thus stopped, and up to and after the
time the defendants resumed work on the sewer,
(ss they did the 24th day Of August, 1s74,) the
plaintiff held and rendered himself TO the defend
ants ready and prepared to continue the work.
ApplemaD, the defendant, however, declared re-
peatedly TO the plaintiff that he should do no
more work for the defendants on the sewer, and
refused 10 accept the rendered services OF the
plaintiff. I'm the 18th Of August, 1874, the new
Commissioners Of the District (appointed under
the act Of June 20, 1s74,) proposed TO defendants
in writing modification Of the plan OF the sewer.
This modification the defendants accepted and
agreed TO. 1t contemplated the continuance Of
the sewer, but with its diameter (from q point to
to be indicated) enlarged to seven feet, upon
new line; and the sewer (instead Of proceeding
along Boundary street to the terminus located en-
Second, called for By plaintiffs contract with the
defendants) was TO be detected and constructed
in q northEesterly direction. The Commissioners
agreed with the defendants that their compensa-
ton should be determined on the same basis as
their former work, so that the difference in the
cost should be directly proportional to the differ
ence Of labor and material. After this modihca-
tion Of the plan Of the sewer had been accepted
pensation for the increased size Of the sewer had
been thus fixed, the defendants at once proceeded
ing TO the modification. Defendants went to work
on the sewer on the 24th Of August, 1874. They
resumed work at the point on Boundary street,
about $50 feet from Second street, where plaintiff
under the circumstances mentioned stopped work
The sewer was constructed by defendants from
that point, without any change Of dimensions. 10
these 100 feet the sewer was constructed In the
Fame strTight line along Boundary street toward
Second as that pursued before plaintiff stopped,
and in constructing these six or eight feet OF the
sewer, the defendants used the very trench that
had been previously dug by the plaintiff for the
sewer. The rest Of the leo feet Of the 6foot sewer
were constructed in a nOrthTesterly direction,
according to the modification accepted and
agreed to by defendalts) on q line extending be-
yond the northern line of B Jundary street. After
the completion Of these 100 feet OF sewer, thus
constructed, along, across and above Boundary
street, of the size and at the price 1887 per foot
designated in defendants FIRST and original con-
tract with the Board CT Public Works. the de-
PENDANTS went on, and under their contract as
modified, with their concurrence, by the Commits
soHers Of the District, in their proposal or letter
OF August II, 1874, constructed al feet more Of
the sewer In the same northWesterly direction, ]
feet in diameter, for the price of $50 per lineal
foot Price dEsstly PFfSpGF!SnaI T. tas atasE
for the 100 feet above mentioned of 6-foot sewer,
constructed by defendants from the point
where plaintiffs stopped work, they received pay,
under their original contract with the Board Of
Public Works, At the rate fixed in that contract,
OF &S7 per neal foot; and that for the al feet Of
the sewer, above mentioned. feet in diameter, it
M hetWppn the defeudantR and the Tom.
missioners Of the District Of Columbia, that they
should receive, and they did receive, $50 per
lineal foot, that compensation being Intended TO
be- and being, compensation increased in direct
proportion to the increased size OF the sewer for
that distance Of al feet. The evidence further
defendants original contract with the Board OF
Public Works was extended BY the Commits
siOners Of the District Of Columbia, by written
instrument Of that date, so as 70 provide for q
"contiL uation" Of the sewer with diameter Of
seven feet from ''the point Of its northern termI
original contract with the Board OF Public Works
Of August, 1878, and the modification thereof
proposed by the Commissioners, Of August II,
extension Of the defendants' contract il was con
templated that they should continue the censtruc
tion Of the sewer "from the point Of its northern
| terminus near to or opposite" certain stake on
| the Brentwood road, near the intersection Of
| Second and Boundary streets, In nertherly and
RorthEetterly direction, about 1000 feet, more Of
PENDANTS constructed ,o4o feet OF 7foot sewer ir
4 q northerly direction, towards Second street
| from the terminal point OF the al feet, above
mentioned, constructed by them under theil
| original contract Of August, 1878, modified Oh
August IL, 1874, by agreement with the Commits
siOneTs OF the District. And for this continuation
Cfl O40 feet they received the pay provided in the
| agreement Of September Is 1874, for the extern.
| SION Of their contract. The defendants received
from the District government on account Of these
contracts Sl70 9Oo.9o. The plaintiff was thus, al
! matter Of TACT and law. prohibited and prevented
by the defendants and their acts from construct
ing the sever he had the right to do under hi
| contract, to its proposed terminus on Second
| street. At the time the defendants thus unlaW
fully broke their contract with him, and put ar
| end TO the work, they owed him large sun o.
money on account Of the $50 feet he had actually
| constructed, and for extra work done upon and II
| connection with the sewer.
| Among these items Of claim for extra work II
connection with the sewer was an item for II N An
holes of extraordinary size for 10 Of which the de
| PENDANTS claimed and were allowed compensation
by the District authorities in April 1874, and TO
| which the plaintiff alleged the defendants haC
| promised to pay him in September, 1878. Plain
| tif thus brought this suit to recover-(l) Tn
| damages he sustained by being prohibited AM
| prevented by the defendants, 10 breach Of thel
contract, from proceeding with and completing
the work TO Second street. (2.) The balance b
alleged to be due him under mis- contract for tn
price per Iineal foot Of 34s0 feet Of sewer he wa
allowed to construct. e. The value Of the
| man-holes and other extra work done IN tn
| If fla conRfruerIon nj thu saWar TIL