Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1899-12-06

and the liability Of the contractor for
this bill, Is not intended to be dis
cussed here. Doubtless before this
matter Is settled other members OF
the board will have n chance to put
their hands into the pockets of the
district and draw out a liberal at
torney's fec, but such a result is to he
expected, all considered. But that
the present quarters are inadequate
and In every way undesirable Is hard
ly disputed by any one cognizant Of
the facts. unless II be by that men,
Der who Is realizing rent from a build
Ing wholly unsuited for a school, but
quite appropriate for the other use
to which 1t is being put-a warehouse
for liquors.
The mere fact that one member OF
the board is protitlng by the delay In
opening the new building In securing
a continuance OF rent for one owned
by him, and that another member,
an attorney, will undoubtedly be re-
tanned on behalf OF the districtin case
a lawsuit IL filed, seems sufficient to
warrant n feeling that the board
may not be as energetic In settling
the dispute as they might be, though
in the case OF the latter 1t Is but fair
to Mr.. Cort to say that for some
time past he has been absent from
the state and n possible settlement
or decision in the premises has been
postponed until his return this week.
But the people do demand that the
new building be opened Mt once. They
demand 1t on behalf of the teachers
and on behalf Of their children In at
tendance. The primary pupils are
not receiving the advantages to
which they are entitled, only being
allowed to attend one-half OF the day,
and the health Of the children forced
to attend the sessions in the Jackson
building IL being endangered, to say
nothing Of their comfort. IL IL freely
stated by several parents that they
cannot allow their children to at
tend the departments in the east side
building In severe weather.
As pointed out before In these col
umns, and as dwelt upon by j. l..
Corbly in n communication in our
contemporary last week, the people
have already paid two years inter-
est on the bonds and hav We manifested
great patience while the new build
ing was being completed, but now
that ii il ready for occupancy they
demand the use Of 1t and will brook
no quibbling In the matter.
But the statement has been i'd
vanced that II the district uses the
building they will thereby waive
rights In the subsequent settlement
Of the difficulty with the contractor,
which they otherwise would have.
Our attention has been called to
this phase Of the case by Attorney w.
NJ. Blackford and, by his courtesy.
we are permitted to present the sub
stance of n decision handed down by
the state supreme court In July last
which seems to fit this case and set
Mt rest the rights OF the district In the
premises.
The cas- Is entitled Franklin V.
Schultz, the courts decision being
written by Justice pigott, the other
justices concurring.
From the decision IL appears that
the defendant had awarded n con-
tract to plaintiff for the erection OF a
building in Butte, payment therefor
to be made In installments. The
building was completed by Franklin
save the plasterlng Of asmall portion
In n hall. owe which n contention
arose. Schultz demanded OF Frank
lin the keys to the building and
Franklin refused to deliver them I'M
TIL the final payment was made on
the contract. Schultz %thereupon en-
tered the building In the night, Sc
cured new keys to the locks and took
possession. Franklin brought suit
on his contract, alleging that Schultz
had waived his rights upon taking
possession OF the building.
In the syllabus the court lays down
this law:
"The owner Of a newly constructed building,
refusing to accept the same because not com
pleted according to contract, moves into the
building, will not operate as a waiver of de-
fects and acceptance"
But after n lengthy discussion OF
the points involved, the opinion
quotes from IA decision written by
Judge Comstock of New York and
quoted from Smith v. Brady, II n. Y.
l73, which says In part:
1.-THE owner of the soil is always in posses,
sion. The builder has a right to enter only fol
the special purpose of performing his contract
Each material as il Is placed in the work be.
comes annexed to the soil. and thereby the
property of the owner. The builder would
have no right TO remove the brick or stone oil
lumber after annexation. even II the employer
should unjustliiably refuse to allow him tc
proceed with the work. The owner. from the
nature and necessity of the case, takes the ben.
eft of part performance, and, therefore, by
merely so doing, does not necessarily waive
anything contained in the contract. To i'm
pute TO him a voluntary waiver of condition:
precedent from the mere use and occupation OF
the building erected, unattended by other cir