The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1899-03-05
QUESTION FOR A JURY
Ruling Of Judge Hallett In the Par
ley's Conduit Case.
GRANTS ANOTHER TRIAL
MAY WINS FIRST ROUND IN
CITY,S SUIT AGAINST HIM.
Damage Suit of Hoytsville Irrigation
Co. VS.. Ontario Co. Transferred to
Federal Court-John and Dennis
Winn, Fugitives From Justice,
Arrested-Doings of the Courts.


In the suit of Joseph H. Smith ct al.
VS.. Salt Lake City, for payment for al
legged additional work in the construc-
ton of the Parley's canyon auueduct.
Judge Moses Eallet of Denver filed an
order yesterday in the United States
circuit court granting the motion for
new trial before a jury. TIE case
was heard in august last before p. l..
Williams as referee, who found for the
plaintiff in the sum of S10.0iA o.. In
December last Judge Hallett listened to
the plaintiffs exceptions and objections
to the referees report, and now sus-
tdinS the same. The costs that have ac-
crueG to date shall abide the event of
the suit. and if the plaintiffs shall at
another trial recover no more Than was
allowed them at the last trial by the
referee. all costs hereafter accruinS
shall be taxed to them. The amount
claimed by the plaintiff against the city
is nearly 100000, including interest.
Judge Hallett'S opinion IL as follows:
Under contract with this defendant,
plaintiffs built an aqueduct about six
miles long, which is called the Farley S
canyon aGueduct. In the course of
construction certain work vas done by
liI6S dliGSeQ u We
ditional to the WORK mentioned in the
contract, and for which they demand
ed payment of the city as extra work.
Their right to COMPENSATION fer such
work was sustained by this court on the
motion for a new rial following the
first trial decided in November, 1897 At
the second trial, in August. 1898. much
testimony was heard relating TO the
quantity and value &C such work.
1on ,,f
work was material to be ascertained,
for if the business was properly and
economically considered. the cost would
be the best evidence of value. The
opinions of competent witnesses as to
the cost of the WORK by contract would
not be excluded, because such opinions
would be some evidence o. its value to
be considered in connection with the
actual cost. Such evidence OF the cost
by contract might be strong enough to
overrule the testimony as to the actual
cost; especially if it should appear that
the work was not we'll managed by
those who did it, or thai il did not, in
fact. cost more than the reasonable
price by contract.
At the first trial plaintiffs put in tes-
timony relating to the quantity, cost
and value OF the extra work, and de-
PENDANT offered no testimony touching
those matters, contending That it was
not liable for such work, except as pro-
vided in the contract.
At the second trial both parties nut
IL testimony on the subject, and that
became the principal controversy in the
case. The testimony was widely diver
gent, that of the plaintiffs showing the
value to be 30 or 40 per cent more than
the testimony offered by defendant.
The referee appears to have acceDted
the testimony of the defendants wit
nesses, and this is made ground of OBJ
lection and exception to his report by
plaintiffs. There are other questions in
the case, but it is not necessary to dis
cuss them at this time.
In the course of the two trials plain
tfffS called five witnesses who were
CONCERNED in building the acueduct,
and were familiar with the details of
the work, all of whom testified as to the
quantity and value of extra work done
by the plaintiffs.
One William III. Evans was the engi-
neer in charge under the plaintiffs en-
ployment; another, Edward LIE Prohon,
was an inspector of the work employed
by the city; another, Robert c. Sy-
monds, was an engineer in the city en-
gineer's office, who made plans for some
of the culverts: two others, Charles
Seuffert and Henry Sturrock, were
stone-cutters who worked on the aque-
duct. These witnesses, with full knowl-
edge of the subject, supported plain
tiffS demand in respect to the quantity,
cost and value of the extra work In
controversy
No witnesses were called by the de-
PENDANT to the same point who had the
same knowledge of the subject De-
fendant had three witnesses, A. +. Do
remus, the city engineer; F. G. Kelsey,
an engineer, and 0. r. Young, an engi-
neer who worked on the aqueduct. But
they were not examined on the question
of values. They were called by the de-
PENDANT as witnesses on other points,
and the omission to examine them on
the question of value affords an infer
ence that they would have supported
plaintiffs demand if inquiry had been
made on the subject. Defendant pre-
ferred to call witnesses from other oc-
equations, some of them from a con-
siderable distance, railroad engineers
and other engineers who knew some
thing of the cost of such work in other
localities, and who had no knowledge of
the work in controversy, exce0t as
could be got from going on the ground
and making an examination of the sur
face and such parts as are exposed to
view. These witnesses were unuues-
of high character and ability, |
but they had not such knowledge of the !
situation as would enable them to
speak with accuracy. The question for
is whether the innings ~
the referee based upon the testimony |
of witnesses who had little knowledge |
of the subject can be said to be SUD- |
ported by the greater weight of testi |
mony when there is in the record t,le |
testimony of other witnesses of equal |
who speak from full l.nowl !
edge of the subject, and when the party |
in whose favor the findings were made |
has failed to call witnesses within lis
who had the same knowledge |
of che subject.
In that view, the case appears 10 be
for the plaintiffs, sufficiently, at least, |
to demand that the facts shall be sub
mitted to a jury, the ancient arbi.eg If |
the common law, which, although much |
reviled in recent times, still stands as !
the most satisfactory exponent OF con- !
troverted facts in an action at law.
The order of reference and the report |
Of the findings of the referee will be set