Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-03-26
rnE nIeH.en CouRrs.

Galveston, Harrisburg Dan AnVonlV
railway Company vs.. Henry & Oily, APP
neal from Harris. Henry & Oily were
contractors Tor constructing the road |
az the company, and the amount In dis.
putc is the sum Of SS2,787 the right OF |
The contractors % recover this sum de-
pends upon whether the amount OF rock
banled and embarked by them Is 10 DC
determined BY measuring the excavation ,
from which the rock was taken, or Dy
measuring the cmbankmcnt oil whlcn u
formed 4 part. The contract Itself dee
not state in terms whether the excavation
or embankment Is to be measured, put
the specifications provide, among other
things, that "the measurement OF quanu-
ties will usually be made In tine cuts or
pits from which the material has Deen
taken.u And the contract provides that
s'the quantities and amount OF tine seVeral
kinds of work shall be determined py the
chief engineer, orby an assistant engineer
acting under his direction, ana
his determination shall be con-
cIusive mon both parties" Held,
the use of the word usually" as
above, shows that The measurements
were not always TO be made In the pits,
hut that this general rule was TO have
exceptions, and as these are not stated,
they may be determined by outside testi-
mony, by usage OF the company in ike
cases While the chief engineer testified
positively that the usage was universal 10
measure the pits, another engineer OF the
road testified TO the contraryi that he as
engineer, always measured In the en-
bankment and had so measured the Work
OF appellees for the first four months,
and until he was instructed other
wise by the assistant engineer.
This was supported by evidence
OF other engineers and other contractors.
Under this evidence the finding below
against the contention OF the company
Will not be disturbed.
Now, under the clause in the CON
tract set out above, was the estimate and
construction Of the chief engineer bind
ing upon the contractors. This clause,
properly construed, Is to the effect that
he shall determine as TO the amount OF
the work done under the contract, not
that he shull make a different contract.
lie must decide under the legal construc-
ton Of the contract, not upon such con-
struction as be may choose to give 1t. He
is not made the arbiter to whom is TO be
referred differences as the meaning of the
contract, and he cannot adopt rules Of
measurement that the contract does not
authorize. iii. 1875 10 Ill. 49, sc Ind.
100.
The work was performed under writ
ten contract, by virtue of which the price
became due on the LIST October. The
court allowed interest from the LIST Janu-
airy succeeding. This was erroneous.
The interest should have run from Octo-
Der /. 1t was In no sense an open ac-
count. Judgment affirmed, with addl-
tiOnal interest. Opinion by Willie, g. j.
Estate OF Mrs. Biler, deceased, appeal
from -. After stating fully the evil
dence upon which the jury found that the
will In controversy was avoid, on account
of mental incapacity the court say "Some
of tho facts stated are not denied-.the
most OF them are strongly contradlcted.
The whole theory Is vigorously and ur-
gently combated and by an array Of wit
nesses and mass OF evidence the sanity
OF the testatrlX Is stoutly defended.
verdict supporting the will may have
been more satisfactory to this court, but
that rendered appears TO be the deliber
ate judgment OF jury, selected and &c
copied by the parties. The court below
refused new trial, and we find in ap
pellant's favor no such preponderance o.
evidence as would Justify the conclusion
the result of fair and impartial trial
Rehearing refused Opinion by Robert
son, j.
Adoue g. Lobit ct nj. VS.. II. s. Jemisoi
& Co, appeal from Galveston. The cour
below took notice Of the tendency OF thi
action, aud ordered the property seiZei
under attachments sued out in othe
causes, Instituted by appellants, to b
sold and the proceeds paid into the regis
try OF the court to await the result of thi
action, the appellees not being parties 4
them, this was but an irregularity whic
cannot be revised. This action wa
brought to enforce u Hen claimed by al
pcllees on the property seized under a
tachments In the other suits, aud as be
tween the parties to this suit, their COZ
troversy can as well be settled by dete
mining the rights of the parties to III
proceeds returned into court, as could
be had the property itself remained in III
officers hands. Affirmed. Stayton, j.
T. T. Hudson, Jr,, VS.. Willis & Bro
appeal from Galveston, Upon an accep
ance Of an assignment, and an agreemel
TO release the assignor, he stands di
charged from all further liability to Il
oonsenting creditors. The recurrence
that the creditor should execute releas
assignment and discharge, for wheth
the release Is executed or not, the ere
itor is without further remedy again
the assignor,
II was error to allow evidence as
statements made by \, +. Hudson, Sr,,
TO his desire to do business In the mar
Of his son, or that he would be wor
100000 II he could drop the /
Nor from his name These EXPIRE
slons We're not used by him In the cour
81 his agency, but whilst he was ;
ranging for settlement OF hls ov
affairs The only ground upon viii
they could be admitted was that th
were the declarations of co-conspiratC
engaged with his son, the plaintiff, in
design to defraud the defendants by CT
rying on business In such manner a.
place the goods OF Hudson, ST., beyo
the reach OF his creditors, and at Il
same time reap the benefit of using the
AS stock for merchandising. Such mi
ter was not pleaded, and without sucf
pleading the evidence was inadmissib
Reversed and remanded Opinion
While, CD.
Rippitoe ct al. VS., Thomas Dwyer, /
peal from Washington. That lis pende
operates as notice Is held to be II