Los Angeles daily herald., 1888-05-27
NO MERCY FOR cox.
Judge Temple Holds He IL Not Enc
tliIrd In Rncaxcr.

titled to Recover.
Judge Temple filed his dissenting
opinion in the Cox vs.. Mclaughlin case
recently. His conclusions differ very
materially from those Of his colleagues,
Tor he sums up decidedly against paying
Cox cent. He first reviews the history
OF the case and then proceeds directly to
deal with the agreement between
Cox, Meyers q Co. and McLaughlin's
chief engineer, Lewis. BY this
agreement Lewis was TO receive 10 per
cent. of the profits in the contract with
Mclaughlin, in consideration for which
he agreed to take pains in the location Of
the work, and in laying it out 30 as to
save as much work as possible to them,
and make such changes as wonld make
the work lighter. Estimates we're made,
as provided in the contract by the en-
gineer, based upon the alignment
and profile, although both had
been departed from by altera-
tions made under the advice Of
the engineer, who had thus become
the secret partner Of Cox, Meyers & 90.
The first four payments were made
while Mclaughlin was absent from the
state, and when he returned he OBJ.
! jected to the mode OF making the eetim-
ates. claiming that they should have
been changed, but upon accurate estim-
ates Of the amount OF work actually
done.
| 'The line Of the road" continues the
| opinion, ''has been made 30 as greatly to
| diminish the amount Of work to be done,
| Yet in making the estimates he ascer-
tanned the proportion Of the work done
necessary to complete the road-bed for Q
| specific distance, and then allowed for
that proportion which would have been
received II the line had not been
| changed"
! Regarding the abandonment of the
contract, Judge Temple holds that the
failure on McLaughlin's part to pay did
not authorize Cox & Arnold to abandon
the work and sue on the contract.
For this BREACH" continues the
opinion, plaintiffs had simply their
right OF action for damages. There was
no rescission by mutual consent, Nc
Laughlin not having been shown to have
been insolvent and unable to meet his
payments"
THE AGREEMENT A FRAUD.
Judge Temple, in dealing with the
charges Of fraud on Cox's part, leans
decidedly to defendants side. He says:
/ s'Jf the charge Of fraud be considered,
= ls equally plain to my mind that 1t
constituted breach of contract on the
p1kt of the plaintiffs as would Of itself
render it impossible for them to recover
upon the contract. In my judgment
the allowance of the amendment settling
up the claim for the actual value of the
labor performed was, under the circum-
stances, an abuse of discretion which
ought to be reviewed by the courts"
"This litigation has been pending
some sixteen years, during all Of which
time plaintiff has been contending for
compensation at the conventional ratee
fixed in the contract. Not only 30, but
this contest has been kept up after most
clear and explicit rulings Of the Court
that no such action could be maintaineds
and intimations that PLAINTIFF remedy,
If they had any, was for the reasonable,
vn1pc Of the labor performed and the
Materials furnished. Now, even one
who has a grievance owes some duty to
his adversary and to society. Because
he has been injured, he is not pacified in
vexlng the wrong-doer with malicious
litigation, nor can he persist for years
| in bringing suit which he cannot main-
s&iti5 GIN eilOii, ou Dc'uS uoltab6u, 8I00nQ
and recover that which for years he has
virtually declined to accept whom the
suit he might have brought has been
barred by the statute. Here, before this
amendment was asked, the suit upon Q
quantgns meruit was barred seven times
over"
''The manner in which The value Of the
work actually done is estimated, IL alss,
found fault with, there not being any
evidence in Judge Temples opinion, te
Justify its being fixed at sos, 600. The
opinion concludes as follows: "It is
emphatically case where, having made
bis own bed the plaintiff should lie in it.
Having persisted in a claim for years
after he was distinctly told he could not
recover upon that basis, he should not
be permitted to recover upon . new
theory where time has destroyed all
evidence. Holding these views Il ID not
necessary to review the other pointa
made. us. F. Call.