The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-08-06
M4X 3r&H1FH lMNEE HMNatE
IRE JURY have IT NOW,
Judge Hunt Delivers His Instruc-
tions in tho Great High
School Case.
They Were Very Lengthy and
Exhausted All the Import
ant Points.
Il the Jurors Do Not Agrees by Tuesday
They Will Remain In Continuous
Session TIL They De-.

SnoaF verdict. Under tne lnssHuctiohs U
the Judge they were allowed to separate a
nine O'Clock last night. This morning n
nine O'Clock, sunday TO the contrary not
M~ithatanding, they must get together
again and stay together until
nine tonight. Tomorrow they vii
put in the same hours unless they agree be
fore the dav is out. Bat on Tuesday nom
ing when they assemble they will remain il
continuous session. day and night. unit
they agree on q verdict. or agree to DIS
agree. Saturday was the ffty-second day
OF actual trial. II has been a hard strain
on Judge Hunt. the lawyers and the jury
particularly sincs the hot spell act in
Now that the case is over except for the yer
dict of the jury, the court will try severa
criminal cases, commencing Tuesday, ane
then take q much needed rest.
Judge Hunts Instructions yesterday were
very lengthy. He said the plaintiffs based
their right TO recover on the contract, ano
In order to entitlo them to recover they
must prove By a prepondorance Of evidence
that they had substantially complied witt
Its terms, and il not that they we're pre-
vented from doing SO by tie board OF s!us-
tees. The judge then quoted the provisions
OF the contract in regard to extras and
changes, and continuing said: "Consider-
ing the various items of changes alleged. 1t
ia charged that it Was the duty OF the plain
tiffs to procure q valution to be put on the
alts rations by the architect. and the law
would require them to do SO ns q condition
precedent to the right to recover. In case
the valuation by the architect was not
agreed to the contractors could have pro-
or eded on the written order OF the arehi-
tec., and the valuation OF the work arol-
trated. In this case plsinsiffs admit that
architect, but contend that that article
of the contract requiring such a
valuation was modified or waived, and that
thew were thereby excused from securing
that valuation and were entitled to proceed
against the board for the reasonable value
of the alterations Inc terms OF the con.
tract, the instructions continue. could not
be charged by any private understanding
between the board and the architects; and
vet any agreement between the board and
She contractors for additional work to be
paid for as extra. would. as to that partlcu-
lar work. If done without the atchitect's
order, constitute a waiver of the contracs
as to the valuation of that particular case.
and entitle them to compensation. The
court then defines q waiver and goes on to
quote that provision of the contract pro-
yiding that no claim shall be made for
additional work unless it is done in pur-
suance of q written order from the hrchI-
tect. ut is c~ontended," says the court.
that there was a modification OF this
clause, and you are charged that any part
OF the contract might have been modified
by subsequent agreement between the gar
ties to 1t; and in relation to all items for
which extra charges are mAde you must
find that plaintiffs obtained an order from
the board or from some one authorized to
act for them."
TIL tenth clause of the contract is
quoted. 1t ia the one requiring the trustees
TO provide the labor and material included
in the contract so as not TO delay the prog
less of the work; and imposing the same
obligations on the contractors; either party
at fault to reimburse the other. the amount
of loss to be determined by the architect or
arbitration. The court said it had been
eontended that there was a waiver or modi-
Hcation of this clause and damages are
claimed by the contractors for alleged de-
lays in the work by the boards failure to
provide material. THE amount of such
loss" the court says, never seems to have
been fixed by the architect or by arbisra-
tion, and one of the material issues sub
nitted is whether or not at the time they
performed this work there was a nodifica-
ton of this clause or a waiver OF its pro-
Visions" The jury were instructed also to
say whether there was "A special contract
fixing the price of the cement used or
whether the plaintiffs should recover. if al
NIL, a reasonable valuation of the cement
used. The jury we're instructed TINT If the
contractors put stone hntels in the build
ing not called for by the specifications, 1t
Was proper that they stand the expense of
the necessary work to make the liutels fit,
unless the use of such lintels was author
lied. The superintendent was not required
to accept material before 1t was placed Ia
she building.
different roof was put or the building
than that called TO-. the court says. by the
original plans una specifications and u spe-
cial contract was entered into regarding il.
''Ihis special contract" the instructions
eay, sis silent on the question of waiver of
claims for damages by delays. The law
would presume from the execution of this
contract, that any such delays were Waived.
But the contractors claim there wns r. verbnl
understanding by which they were not to
waive any such claims they might have
had"
"a material ISSUE" continues the court,
sis that relating to the wall Of the building.
If you find, after considering all the evil
dence. that the wall ConforIned to the plans
and specifications. you will have but little
difficulty, aud need answer only the single
question submitted. If, however, you are
satisfied that the work Is different from
that contemq dated by the plans and speoif-
cations, you will then consider whether the
board or some one in authority ordered the
work lone in the way it now ap-
pears in the building. or whether the
board subsequently and during the pro-
g ees of the work and with full
knowledge of its nature, acQuiesced in and
accepted the change. if any change there
was; and also consider. If you reach that
point, what would be the difference in value
between the work called for by the plans
and specifications, and that done" Re
ferring to the claim that the board was re-
quired to furnish rubblo granite Of the
aiZes o ordinarily supplied by quarries for
similar VOL X, the instructions say that If
the board did this their obligations were
fulfilled; but If the sizes were such that the
contractors were required to do mUEe d ill
ing than customary on the same work, then
the contractors might recover for SO much
work as they did over and above what ia
ordinarily needed.
The court then referred to the clause in
the cont act providing for the trustees
taking charge of the building on the refusal
of the contractors to supply skilled labor
or their failure to prosecute the work with
duo diligence. This was to be lone after
three days written notice and after the ar
chitect had certified to the refusal, and the
cost OF completion was to be deducted from
any money due the contractors. 1t ls nd
united that the trustees took possession of
the building III May, 1892. Ihei claimed
that tho contractors had abandoned the
work and that the architect unreasonable
refused to give them the certificate con-
teInplated by this provision of the con
tract. The court said the trustees had 10
right to take possession of the building
without the certificate of the architect IN
less he was unreasonable in not giving it.
''Whether or not" tho court cOntinu sd.