The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1893-01-13
TIE JAsPgRITE CASE.
Motion 10 strike ont the Answer ting Up
Freud.

The jasperite paving case WAS up again
Yesterday in the federal court on the
pleadings and the argument continued I'M
| til this morning.
At the September term the city. by its
| attorneys, fled an answer II the petition
| OF the contractor in which is pleaded three
| separate causes of defense. First. it is
said that the work done is not II compli-
ance with the contract. and that the pave
| ment as put down is OF no value. Second,
that no detailed estimates Of the cost Of the
work was ever made, and therefore the
city council had no jurisdiction in the
matter Third. that the city council never
adopted or published a resolution declar-
ing the pavement TO be necessary, as the
statute provides, and therefore had no
power to let the contract.
To the first part of the answer Mr..
Coffin, the attorney for the contractor.
demurred and at the September term Of
the court Judge Williams sustained the
demurrer. II was this decision that gave
rise to the report that the city had been
defeated in the case The other two sec
tions OF the answer went over without
action.
above stated, the attorneys for the city
took leave to file an amended answer which
they did some time ago and in which they
allege that the contract was procured
throgh fraud by the plaintiff hav-
ing bribed certain members of the city
council to award him the contract.
At the present term of the court de-
murrer was interposed to the second AMI
third causes of defense set out in the first
answer filed aud which was argued and
overruled.
After this Mr. Coffin filed motion to
strike out that pars OF the amended an
swer that set up as a defense the action Of
certain memb ers of the council in receiv-
ing brides to let the contract TO the plain
tiff. This motion was argued yesterday
in part and went over until this morning
when. if not crowded out by a jury case,
Mr.. Vermillion, for the city, will complete
the argument
The motion to strike out is based on sec
ton 139 of the code of civil procedure
which prohibits amendments that go to
change the matter of defense originally
pleaded. The supreme court. however,
has held in a number of cases that when a
pleaded or not, it is the duty of the court
to go into the matter when it relates to
the public morals.
Strong ground is taken by the plaintiffs
attorney that the city is estopped from set
ting up this defense by the very terms Of
the contract wherein it provides
that as the work progressed
il should be inspected by the
city engineer, that be did so inspect the
work and reported it as having been done
in compliance with the contract, and that
as soon as his reports were made the same
were at once approved by the city council.
But Mr.. Vermillion cited case yester.
day that is directly in point and one in
which the supreme court hold that where
fraud was practiced in the procurement Of
the contract it is proper to admit evidence
TO show it, and although the work was
done strictly in compliance with the con-
tract, if the same was procured through
fraud a recovery could not be had
The case cited was this: 4 Turkish
consul having his residence in this
country, at the solicitation of mauufac-
turer of fire arms induced his government
10 purchase large quantities of the arms
from him. When the same were made and
delivered according to contract, the consul
claimed that the manufacturer had agre ed
TO pay him certain sum of money for
procuring the contract from his govern
meut, and when the payment OF the same
was refused, he instituted suit to recover
it and the court held in accordance with
the position taken by the attorneys for the
city in this case.
II the motion Of Mr.. Coffin is denied the
issues in the case will have been made and
the case will be ready for trial. Mr.. Yer
million said last night that they have wit
nesses TO fully corroborate the testimony
of John V. MolIit III his deposition taken d
few wee ks 400