The Vermont watchman. [volume] (Montpelier, Vt.) 1883-1911, 1891-09-23
Washington County Court.
Hon. HENRY r. START, Presiding Judge.
Hon. T. II. LANCE, hSS'S'o" o"o9eS'
NJ. Il. SMILE, Clerk
w Hnuu CboriH

| E. w. HOWE, Sheriff.
| ZED. s. STANTON, States AttOrneU
| JOHN II. MIMMs, Reporter.
r. G. Bowers Granite Co. Us. z. Rhein-
| halter q Co. This was an action Of assump-
sit to recover $3.50, the cost price of GER
tain piece Of statuary which the plaintiffs
had furnished to the defendants under a
special contract. The defence was an al
legged partial failure of performance. The
contract price was $3.50, with $50 for extra
carving and $40 for polishing four faces OF
the base. This piece of statuary was mon
ument for one Morgan of Philadelphia, and
was intended for location at Laurel Hill
| cemetery. 1t was contracted for in Decem-
| Der, 1885, and was sent to the defendant at
Philadelphia, September 9, 1889. The evil
| dence of the plaintiffs tended to show that
| the defendants took this monument, COM
| posed of four pieces, the longest cross
eight feet high, and had it carried from the
cars to the cemetery, where it was to be
erected 1t was there set up, and the names
of the departed members of Mr.. Morgan's
| family were carved on the second base of
the monument After thus lettering and
setting the work up, Rheinhalter Il Co.
refused to pay for it, and it has not yet been
| paid for. Sometime in March, 1890, this
suit was brought. The plaintiffs claim that
the contract as made December II, 1888,
was modified at various times and in various
ways, by correspondence between the par
ties. All of the correspondence between
Bowers Granite Co. and Rhenhalter &
| 20. was put III 6NlubnCe-aDOut tl1Jy letters
in all. The opening testimony on the part
of the plaintiffs tended to show that the
work was completed according to contract,
and that the granite furnished was Of the
quality called for. The testimony on the
part of the defense and the claims in the
premises were in substance as follows:
That contract was made between the
| parties that plaintiffs should build this
monument and deliver it on the cars, and
that it was to be made of Standard Ryegate
time to time and that the plaintiffs did not
get the job done at the time they were to
have it completed. Finally the plaintiffs
sent sample of granite to the defendants
and stated that the monument was to be built
| of that kind of granite. The monument was
finished and sent to the defendants, as
| stated, but upon examination of it, after il
was washed off, it was discovered that the
second base was stone that was unfit for
monumental purposes, and unfit for any
work OF the kind, and was not such stone
as was contracted for, or as the sample sent
Indicated The particular defect claimed
by the defendants was the appearance of a
seam running clear through the stone 1t
was claimed by the defendants that an ex-
animation of the stone would show for it
self and establish the claim in this behalf.
Several experts in granite were intro
duced and on inquiries put to them by the
defendants counsel, gave it as their opinion
that the line that appeared in the stone,
was a weakness in any stone, and where 1t
was found there was a tendency in the
stone to come in two pieces, breaking
where this line or seam appeared. Most of
these witnesses testified that in their opin-
ion the stone was unfit for monumental
purposes, particularly Tor a monument of
the cost of this one. The defendants intro
duced some large photographs of the stone
in evidence. and as 1T appeared by these
pictures the " seam" in the stone was very
| Tn Vol m pa inn of thn
defendants witnesses, most of them adj
mitted that they did not find, upon making
an examination of the stone, that there was
any such seam or streak as the photo
graphs would indicate. When the defendants
learned OF the defect in the stone, they wrote
to the Bowers Company and complained of
its quality. In reply to this the plaintiffs
wrote and insisted that the quality of the
granite was all right, and nothing was done
by them. Thereupon the defendants ordered,
from elsewhere, a new second base, having
it shipped to them in the rough, and getting
it completed, reset and re-lettered in Phila-
delphia For the expense of material and
cost of labor in making the stone what it
should be by the contract, as defendants
claimed, defendants insisted they should be
made good by deduction of the amount so
expended. The old second base was taken
out from the monument and dumped
among the rubbish in corner of Laurel
Hill cemetery. 1t was in this location
n
taken. Rheinhalter swore that to his knowl-
edge nothing was done to make the seam
appear more prominent than it was. 1t did
not appear that he was present at the Gem
etery when the pictures were taken. When
the defendants had got all their opening
testimony in, Mr.. Huse, counsel for the
plaintiffs, made motion to the court asking
that on defendants testimony verdict be
ordered for plaintiffs for the amount of their
claim. The basis of Mr.. Huse's motion was
hot tIa 1afa do 70 haI a of n RI Of
the monument, and received a benefit
therefrom, and had accepted of the job;
that they could not now repudiate the con-
tract, but must be held liable to pay the
amount therein expressed. In reply to this
Mr.. Lamson for defendants said it would be
claimed that the Bowers Granite Company
had fraudulently palmed off upon Messrs.
Rheinhater ~ Company stone that was
known to the plaintiffs to be defective one.
The court overruled the motion. Judge
Start said it was best for all concerned that
the whole case be now tried as far as its
questions of fact were concerned. Then
when the case went up to the supreme
court, a final judgment could be entered in
the case. The plaintiffs then went on with
the case, in answer to defendants claims of
imperfecton in the stone. Mr.. Farquhar-
son of South Ryegate superintendent of
the Blue Mountain Granite Company, testi-
fed as to the quality of the granite fur
nished the Bowers Company for the work.
Granite Company of Groton, and was with
out blemsh, except the discolorations incl
dent to the nature of that particular stock.
There was no such quarry at Ryegate as
the Standard Quarry" and the witness
did not know of any such granite. There
we're Standard quarries at Hard
wick, and the granite furnished therefrom
was not distinguishabe from the Excelsior
granite. Witness had examined the second
base of the monument now at the Central
Vermont freight depot, and found no de-
feet in it. There was a slight line visible
but it was no defect and no weakness in
the stone. The same kind of stock was
largely used for monuments and gave sat
isfaction. Witness admitted that if the Sec
ond base could be split along the line of the
claimed seam, by the use of a single wedge
, it would indicate weakness in the stone
, and unftness for monumental purposes
|, The evidence was also produced of the
quarry foreman who superintendent getting
, out the granite, and of the men who had
charge of the workmanship. All agreed
that from the time it was got out to the time
!, of its shipment to Philadelphia it was
second base of good material and workman'
; ship. 1t then appeared in evidence that
Mr. FORSYTH and Mr., Cooke had split the