The times. [volume] (Richmond, Va.) 1890-1903, 1900-09-16

out OF this claim the opinion quotes anc
discusses the provision OF the ,contrac
that no claim for extra work should EDe
allowed, unless such extra Work was
excessive, and, IL excessive, the compen.
saIou therefor should be agreed upon by
| tle engineer for the railway company and
the contractors. This provision having
never baen waived. was obligatory on the
parties and cannot be dtsregarded.
Independent OF this provision the claim
for extra work cannot prevail. since II
appears from the evidence and me esu-
mates of a civil engineer employed oy tne
Commissfonr that much less Work Was
done than was originally contemplated by
the contract, for which diminution OF Work
and materials reduction was properly
allowed by the court, IN accordance Wi.Li
a provision OF the contract to that e1 i1eS1
Nor can the contractors recover da1nases
for being delayed in the complexion Oh Inc
work by the railway company, siileS az >
such damages are merely con1ectural, anu
also because they acqMesced in the man
ner,of doing the work and the consequent
delay.
Nor are the contractors allowed compen-
sation for Lumbar alleged TO have been ielt
upon the property OF the railway COM !,
pany, as proof is wanting that 1t was useo
by the railway company.
Upon the whole case, the opinion says,
the appellate court is not satisfied that
the decree of the Court OF Law and
f.hancery was wrong, as 1t must be IN
order to reverse It
The court also adopts the opinion OF
Judge Rely in the case OF Sm1th ct al
&c MILLER ct al The decree appealed from
90 reversed In so far as it confirms the SAFE
of the said lands to John B. Miller. ana
stha ca,,se remauded to the Circuit Court
Of Culpeper county, to be TURNER pro
,eeded with in accordance with the views
expressed in the opinion.
A PECULIAR CASE.
Rundine VS.. Bilrdine. Appeal from the
Circuit Court of Russell county Judge
buchanan delivered the opinion OIL lhe
court, reversing the case.
In the year of 1858 N E Burdlne, OF
Russell county, and two of his former
s1ayes. Roena and Nancy Burdine, entered
info a contract evidenced by the following
writing:
KNOW all men by these presents that
i. N. E. Burdine, of the county OF Rus
sell and State of Virginia. am held and
firmly bound in the sum of ten thousand
dollars to Roena and Nancy Burdlne lcol-
ored) of the same county and state. me
conditions of the abovessbond are as 1ol-
lows: That /, N. E. Burdine. Will make
or cause to be made good will to the iano
that I purchased Of c. Frick and reference
~
ne divided between the two parties last
named as follows The bond then de-
scribes the property N. E. Burdine agrees
TO give to Roena and Nancy Burdine.. The
hond IS made upon the condition that Roe
ma and Nancy Burdine live and remain
win Burd.ne and his wife during their
natural lives, .:and in the event that
Roena Burdine should die first, she is
10 have the bank stock mentioned above,
and provided further that she return to
nv home at once and remain as above
stated furthermore bind myself to
treat both parties with Kindness and re-
speciality, they treating me and my
wife sn like manner
(SeaL) IN. E. BURDlNE.
From the close of the Civil War, which
resulted in the emancipation of Roena
and her daughter Nancy, they had re-
NAMED with or in the service of Their
former master until a short time before
the said agreement was entered into, when
they determined to- quit his service and
remove TO Washington county The moth
er did leave, taking with her her own and
a part of her daughters personal effects:
but the latter on account of the severe
Illness OF her old mistress had remained
and was still IN his services when the
contract sued on was made The mother
had been a trusted and faithful servant,
who for many years had been, on account
Of the feeble health of Mrs. Burdine.
charged with the oversight and manage
ment of much of the work connected with
the home and the farm usually looked
after by the farmers wife. The daugh-
ter had been brought up in the home of
Mr.. Burdine and wife, who were childless.
and treated more like a child than a ser
want Among her duties was that of
caring for Mrs. Burdine, who had been
for many years subject to some chronic
disease.
In a few days after the mother quit
Burdine's service he set about directly
and through others to secure her return
to his home and to get her and her daugh-
ter to continue to Live with them and
succeeded in getting them to agree to do
so upon the terms stipulated in the
writing sued on.
The bill alleges that pursuant to the
agreement, the mother returned with the
daughter and lived with Mr. Burdine and
serve him and his wife faithfully until
the latter's death. Burdine intermarried
the second time and his wife not desiring
the daughter to live at the hous with
them, ne moved her to one of his farm
houses. where she remained in his en-
ployment and rendered him valuable SER
vice until his death.
The opinion says: Strictly speaking,
an agreement to dispose of property by
VIII cannot be specifically enforced, not
in the lifetime of the party, because all
testamentary papers are from their ma
ture revocable; not after his death, be-
cause it is no longer possible for him to
make a will. yet courts of equity can do
what is equivalent to specific perform
ance OF such an agreement by compelling
those upon whom the legal title has de-
scended to convey or deliver the property
IN accordance with its terms, upon the
ground that it is charged with, a trust
in the hands of the heir at law, devisee,
personal representative. or purchaser with
notice of the agreement, as the case
may be-
Several grounds of defence are relied onsSI
out the court holds that the slaves are en-
titled to receive the property bequeathed
% them, saving sn conclusion, that the
laughter is entitled to the property which
Nj. Burd;ne agreed to devise and be-
lueath her, and that the personal repre-
of the mother (who was made
/ party defendant to this suit by an
amended bill), Is entitled to the bank
stock mentioned IN the agreement of April
!; 1893
The opinion further holds that the