The Portland daily press., 1897-10-08
JURY COULDN'T AGREE.
No Verdict in Case of RangeIey Railroad
Against Contractors.

Jay Une case OF the hum1OrQ rails anu
RangeIey Lakes railroad VS.. Alfred B.
Nelson, ct ais, was brought to conclu-
sion. This case has been on trial since
the latter portion of last week. While of
much Importance and involving large
sum of money this case is not one of par
ticularly interesting features. 1t is such
a case as is generally left to a judge in
stead of jury, because Of the law points
involved
The conditions of the case are as fol-
lows: Alfred B. Nelson and j. Wallace
Refill, both of the State of New Jersey,
were associated together as railroad coz
tractors under the firm name of Nelson
q Refill. Mr.. Nelson is civil engineer
and MIR. Refill is young man, son of
an old and experienced contractor. When
the railroad was being constructed from
Rumford Falls to Bemis, on the Range
ley, in the summer of 1895, the firm of
Nelson & Refill took the contract to con-
struct the last nine miles, from Hough-
toms in to Bemis. They were to be paid
by the piece, that is SO much for grub
U4GS, SO lullGn POA odlhIO INV III OAOtt-
waiting. etc. Each month the engineer of
the road was to submit an estimate of the
amount of work done, and on this esti-
mate the railroad company was to make
it's monthly payments to the contractors.
The contractors not being men of large
means, the railroad had them give a
bond of $1,000 for the faithful per-
Torrance of this contract. This bond
was given by the American Surety Com
pany, wealthy and responsible institu-
ton
August IA, 1895, the contractors threw
up the work. The railroad company then
got Malloy & Co., of one Island City, N.
Y: to finish the work in time for the
hauling Of logs to begin that winter.
The railroad company ella m that this new
contract had to be made under disad-
vantages as to time, ETC., and that there
fore 1t cost $23, 900 more to complete the
work than it would have cost had Nelson
& Refill carried through their contract.
So the company comes into court and
seeks to have Nelson & Refill or their
suISblcS, W pay tAlo UlAOACASo'
On behalf of the defendants, however,
it has been urged that they were justified
in throwing up the contract. The rail-
road company paid them the first month
ly installment on engineers estimates.
This amounted to only $3.50. But when
the second month came around there was
due SIS, 093. Mr.. Refill went to get this,
but MIR. Waldo Pettingill, of the railroad
company, declined to pay this to Mr..
Refill directly. He said he would take
the money and go around among the men
with him and see that the proper portion
of the money should go to the men. To
this Mr.. Refill objected and threw up
the contract. His counsel have held dur
ing the trial that he was justified in this,
since the bond he had given made him
the railroad company had no right to i'm
pose conditions not in the contract as to
monthly payments. Counsel for the de-
fence also claim that by thus refusing to
pay except on condition, the railroadscom-
pany broke the contract.
lbO Icl1IOdd pOOpl6 Clttlll UilbU bllGy UO-
lieved they had reason to suspect the con-
tractors of slipping out of the contract
leaving the laborers unpaid. AS the Ia
borers would have a lien upon the road in
case the contractor should not pay them,
the railroad people claim that Mr.. Pet
tingill was acting properly, in accor-
dance with the principles of equity and
the terms of the contract. AS moral
question there could be no doubt of this,
Judge Symonds argued Legally also, he
held it to be right, or at least not such a
breach as would justify the other party
in throwing it up. q breach as to time
of manner does not necessarily go to the
| essence. and the burden is upon the other
party to show breach.
The compliments claim that under
| the original contract, owing to the IA
vorable season, the stretch of road would
have cost about SIG, 600, whereas actually
it cost under the new contract performed
in fall and winter, about 500, 900.
There was also dissolution of the firm
of Nelson & Refill which complicates
| the case somewhat.
The witnesses examined in the course
of the trial We're few On the side of the
| railroad, Hon. Waldo Pettingill, Presi-
dent Galen G. Moses, Attorney VIM. H.
Newell and Chief Engineer Stratton
were the witnesses. For the defense, no.
minally Nelson & Refill, but perhaps
more particularly the American Surety
Company, the witnesses were Alfred B.
Nelson, j. Wallace Refill, and Messrs.
Orr and Upgar, employees.
For the railroad Judge Symonds and
". H. Newell appeared. The attorneys
for the defense were Messrs. Anthoine
and Talbot.
I The arguments were able, and consider
ing the technical nature of the case, quite
interesting. Mr.. Thomas l.. Talbot spoke
for the defense, closing about 3.15 p. m.
Thursday. He was followed by Judge
Symonds.
e The jury retired at $40 and at 81t
came into court and asked for instruc-
tious They AGAIN retired and heinz nm