St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-01-05
RULING ON A CLAUSE
JUDGE BRILL INT ESsPE4ETS
PART OF 4 CON FRACE
In Overriding Demurrer In an
Old aad Well known
Case

Judge Brill yesterday overruIed a de-
murrer of plaintiff to the answer of iu-
tervenor in the case of Hennessy Bros.
& Cox vs.. the B0uton Foundry C ON
pany, defendant; the 1t. Paul Gas Light
Company. garnishee. and the Equitabls
Trust Company. assignee and inter-
venor. The case is a trivial one in it.
self. the only point of interest in it be-
ing the Interpretation placed by Judge
Brill i'll his ruling on clause in Duil't-
my contract releasing the owner from
damages.
The Bouton Foundry company con-
tracted to build a purifying house for
the gas light company. but subse-
quently let the contract to plaintiffs,
who did the work. Some time ago
plaintiffs brought suit to recover S549 As,
the balance alleged to be due on &C
count. The Equitable Trust company
filed an answer as assignee and inter-
venOr. setting up counter claim of
Sl95.49 on account Of q damage suit
brought by one Owen King To recover
for injury to his premises owing to the
existence of the gas structure in the
vicinity. The clause in tie contract
under which the intervenOr claims the
gas company withheld this amount
from the original contractor, and under
which it in turn seeks to withhold from
the plaintiff, reads as follows:
And 10 hold said party of the second
part (meanlng the gas company HARM
less tor any and all damages or injury,
or claims for damages or injury, either
to person or property. that may arise
from or be occaSi0ned by the conStruc-
ton of said works or the negligence OF
any person whatever engaged in or
about the construction thereof"
In overruling plaintiffs demurrer to
the answer and giving leave to reply
within ten days, Judge Brill says:
sit may be doubted whether the as
| signee, as intervenor simply, can queS-
ton the right of the plaintiffs to re-
cover, or the amount of their recoy-
cry, against the defendant. But if it
can, and the case is argued
on that theory, the matter set up
in its answer, so-called. does not
affect the right of plaintiffs to recover
from defendant the full amount claimed.
1t is not charged that the damages re-
ceived by King were the result or any
failure of duty on plaintiffs part The
work they contracted to perform was
lawful, and they did il i'll lawful man.
ner. They did nothing which they were
not required to do, and they left nothing
undone they ought to have done.
Kings recovery was against the owner
of the building for the injury done TO
. his land by reason of the location of the
building for gas-purifying purposes on
land adjoining; or. as explained by
counsel In the argument. he recovered
damages not because Of the cOnStruC-
ton or existence of the building, but be-
cause of the use to which the owner pro-
posed to put it. The terms of the agree
ment for indemnity made by plaintiffs
with defendant are very broad, and to
determine their meaning with exact
ness is somewhat difficult; but giving TO
them a fair and reasonable cOnstruc ton
in the situation in which the parties
we've placed, [ think it clear that the
agreement did not cover damages suf-
fered by adjoining property owners by
reason of the uses to which the owner
of the building Intended 10 appropriate
it,"
The demurrer was OVerruled on other
grounds.