The Anaconda standard., 1899-12-03

second or any subsequent estimate be
furnished by the architect until the
plaintiff shall have furnished the arch
Iect receipted bills for all labor and
material used in the work, the remain
ing 70 per cent of the estimates to be
held by the owner until 30 days after
the building is completed and accepted,
and the not to be paid until the plain
TN shall have furnished receipts in full
| for all labor and materials used in the
construction of the building.
That the plaintiff never. at any time.
furnished any receipted bill or bills in
full for materials furnished by him in
the building; that the plaintiff never
| PAID on any estimate furnished him by
the architect or otherwise for the ma
terials used by him in the building un-
der the contract.
| That the contract provided that
should the plaintiff (the contractor) fail
to complete his contract within the
| contract time he shall become liable
for all loss or damage which the owner
may suffer in consequence, but not to
exceed $40 day. 1t also provided that
| should the plaintiff at any time during
the progress of the work refuse or re-
| glect to supply suffi ,l,ney OF mater
| ials or workmen to complete the work
| in the time limit for three days after
| having been given written notice by the
| owner, the owner shall have the power
to provide the workmen and materials
| to finish the. work.
That the plaintiff ceased work and
| furnishing materials and re n vel all
his tools therefrom on Dec. 3, 1898.
! That Dec. the defendant served the
that the plaintiff, after receiving this
| notice. refused and neglected to pro-
| ceed with the work or furnish men or
materials; that Dec. Is. 1898, the defen-
| dant began to furnish materials and
| workmen and completed the work
| April /, 1885, in accordance with the
plans and specifications.
That the defendant, Division No. /.
A. O. II. Of Montana, duly performed
all the conditions of the contract; that
! in addition to the sum Of $8,477.50 paid
by the defendant for the labor and ma
terials furnished by the plaintiff prior
| to his abandonment of his contract, the
| defendant has furnished labor and ma
terials to complete the building of the
| reasonable value of $9,245.S9; that the
reasonable value Of the labor and ma
terials provided by the defendant, over
| and above the plaintiffs contract price
therefor, is s6.467.27, as set out in the
| first counter claim in the defendants
answer; that the plaintiff is entitled to
credit of $2,31S.88 due him for labor
and materials furnished to the defend
| ant, leaving a balance due the defend
ant from the plaintiff Of s4.14S.39.
That by reason of the plaintiffs fail
| ure to complete the building by Dec. 1,
| 1898, the defendant was damaged in the
| sum Of $120 by loss Of rents from one
| Morley and the O'Brien Sisters, as set
out in the second counter claim of the
answer: that the reasonable rental of
| the buildings, omitting the rooms &C.
| cupied by Morley and the O'Brien Sis
| ters, from Dec /, 1898, to April /, 1899,
O. nd a INV roc ff a
plaintiffs failure to complete the build
ing prior to Dec. the defendant was
damaged in this sum on the third coun-
ter claim of the answer.
That the architect p. J. Donahoe,
furnished all the necessary working
plans and specifications for the con-
struction of the building whenever re-
quired by the plaintiff; that no delay
was caused at any time by the archi-
tect in withholding or delaying to fur
nish the plaintiff with the working
plans and details; that the working
plans and details furnished the plain
by the architect were in exact accord
ance with the plans and specifications
upon which the plaintiff made his bid,
and We're not more elaborate orr con-
trary to explanations, nor was any eX-
ira labor performed or extra material
furnished by the plaintiff by reason Of
any variations or additions in the
working plans from l0e DIlSllldl plails
and specifications except such as were
agreed to by the plaintiff and authoriz-
ed by the contract.
That the plaintiff made no complaint
or objection to proceeding with work
for the reason that the plans and de-
tails were changed, until after the
plaintiff had ceased work on the build
ing and has removed his tools and ap-
pliances; that at no time did the plain
tiff refer any matter in dispute in re-
gard to the true construction of the
drawings or specif1ca tiens, or in regard
to the valuation of extra work done or
work omitted, to the ARCHITECT, as auth
orized and agreed in the contract.
That at no time did the defendant re-
fuse to arbitrate any difference, but on
the contrary, did, at the request of the
plaintiff, appoint one arbitrator to act
with another selected by the plaintiff.
but the arbitrators failed to agree, ne
elected to select an umpire and failed
to come to any decision.
That the architect. P. ]. Donahoe,
performed his duties in reference to the
construction of the building.
That the architect did not refuse to
perform his duties. but after the plain
tiff had abandoned his contract, H. N.
Black. competent architect, was an
pointed by the defendant to supern-
tend the completion of the building,
and did so to the satisfaction of the de-
fendant and in accordance with Mr..
Donahoe's plans and specifications.
1tch 80 -