The morning news. [volume] (Savannah, Ga.) 1887-1900, 1899-01-11
REJECTED ROCK WAS USED.
INTERESTING FEATURE OF A CASE
IN CITY COURT.


Based on Evidence Brought Out in
the Carter Court Martial That
Rock which Was Rejected and for
which Payment Was Refused by
the Contracting Company Was
Used in the Government work.
Judge Norwood has granted a new trial
in the suit of G. W. Hyde, administrator
of the estate Of james B. Brown, versus
the Atlantic Contracting Company. This
case will be remembered as a suit by a
contractor who had furnished rock to the
Atlantic Contracting Company for use in
the jetty work on the Savannah river, the
company having refused to pay for GER
tain rock, which it claimed was not up to
specifications.
The case was tried during the February
term, 1897 of the City Court, and a verdict
was rendered for the plaintiff of $S9.5.
This amount was admitted by the de-
PENDANT to be due the plaintiff, and was,
therefore, not an issue on the trial. The
amount of the verdict was paid by the
defendant and the plaintiffs receipt was
taken.
Capt. 0. NJ. Carter then United States
engineer in charge at Savannah. was one
of the witnesses in behalf of the defend
ant at the trial of the suit. Later when
Capt. Carter was on trial by court martial,
his evidence in this case was brought I'M
der fire, and the effort was made to show
that it was not strictly in accord with the
facts. 1t was claimed that Capt. Carter
had testified that the rejected stone had
not been used in the work. Capt. Carter,
in his statement, denied having testified
TO this effect, and said that his testimony
simply related to the character of the
rock. The evidence brought out at the
court martial was to the effect that all of
the rock said to have been rejected was
used in the work and paid for by the gov
. eminent in full. The evidence of the de-
PENDANTS at the trial in the City Court was
that the rejected rock had not been used
in the work, and, therefore, payment had
been refused for it.
The time for filing a motion for a new
trial having expired, 1t was necessary for
the plaintiffs to file a motion on extraor-
binary grounds, this being the first time
in a number of years that such pro-
cedure had been resorted to in the court.
he extraordinary SIOuiluS Ol WHICH, q
new trial was sought by the plaintiff were
set forth in afidavits from Capt. Cassius
e. Gillette, who succeeded Capt. Carter
as government engineer at Savannah, and
A. S. Cooper, who was employed as an en-
gineer and inspector on the river work,
and who was one of the principal wit
nesses against Capt. Carter at the court
martial. The question of the right of the
defendants to apply for new trial was
argued at some length by the attorneys,
w. F. Hardee Esq, for the plaintiff, and
Lester & Ravenel for the defendant. After
hearing the arguments of the attorneys
Judge Norwood took the matter under
consideration. and reserved his decision.
In his order granting the motion for
new trial Judge Norwood, after review
ing the legal features of the case at some
length says: IF the case made by the
evidence were substantially the case now
presented, a new trial should not be grant
ed. On the trial the plaintiff claimed that
certain amount of money was due to
him as administrator, by the defendant,
for a quantity of rock that defendant had
refused to receive BECAUSE, as defendant
alleges, the rock was not of the size re-
quired by the government. The evidence
pro and con was directed to that conten-
ton. Ii was proven that defendant made
discount for each and every carload of
rock Tor the dtltgeu reason That a certain
percentage of rock was unfit for the use
intended Capt Oberlin NJ. Carrier was a
witness for defendant to prove the specifi-
cation of the size of the rock required
There was no evidence that the defendant
delivered the rejected rock to the govern
ment or that the government used any of
il. On that state of affairs the jury re-
fused TO find any amount for the rejected
rock The verdict was for the amount ad-
the intestate Brown The affidavits of
Gillett and Cooper make a different case
from that submitted to the jury. Gilett,
who succeeded Carter as engineer of the
work to deepen the Savannah river SAYS
the records of that work kept by Carter
during his charge of the work, show that
defendant was paid for all rock delivered
to Garter, the engineer Cooper says that
all the rock delivered by Brown to de-
PENDANT was delivered by defendant to
Carter and that said rock went into the
government work on the river Here Is
a different state of facts than the one sub
mitted to the jury. The jury were not
allowed 10 believe from the evidence that
defendant used the rejected rock or was
paid for it. If the statement made
by Gillett and Cooper had been
before the jury it is probable
that they would have given a verdict for
the Ndtue OIL all the rejected rock. IN
deed, if defendant deducted a certain per-
centage of weight from each carload of
rock and then delivered the rock to the
government and received payment for it,
a systematic fraud was committed on
Brown by defendant"
Judge Norwood reviews the legal OBJ
jecuous of the defendants attorneys, that
the plaintiff was negligent in not produc-
ing the evidence which he now brings for
ward at the former trial of the case, and
that the case has already been adjudi-
Gated by the payment of the defendant of
the amount of the former verdict and the
acceptance Of the plaintiffs receipt for
the case. His conclusion was that it was
out of the question to suppose that the
deceased plaintiff. Brown, had been aware
at the time of the trial of the evidence
since offered or that he had impaired
such information to his successor, Hyde
AS to the second claim, Judge Norwood
held that the receipt given for the amount
of the verdict could not be held as a set
Element of the contention between the
parties.
Plaintiff contends that the real amount