The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1901-04-02


were clRmorfng for its completion so
that the use of the highway might he
restored; the season was getting late;
there was no time to readvertise and
relet the contract; the work already
done by Watson could not be appro-
priated; the speedy completion of the
bridge was necessary for the public
accommodation; the commissioners and
the contractor were threatened by In
junction proceedings II they attempted
to complete the bridge according to
the plans OF the county surveyor; there
was no other course for them tn pur-
sue.
Watson is in no way responsible for
this casualty.
First class vitrified shale brick laid
in Portland cement mortar were used
in parts of the arches and for backing
up the parapet walls.
Their use was recommended by the
architect.
They make better arch than native
sandstone
No advantage In their use resulted
to the contractor; they cost more. in
fact, per perch than the price he re-
ceived for them.
Their use was no detriment to the
bridge, but the bridge Is, Ia fact, strong
er and better than IL the arches had
been made entirely of stone, and their
use was made necessary largely he.
cause of Hoover's mistake.
There is some claim made by an
amendment to the petition to the ef-
feet that the bridge does not contain
the number Of perches for which the
board of commissioners settled, but
in the light of the evidence this claim
can certainly not be insisted upon.
Hoover, himself, at the request of the
county commissioners made the meas
urement Of this bridge after It's COM
pletion and reported to the commits
sioners the number Of perches it con-
tanned and the commissioners settled
| on his report.
The bridge has been completed and
accepted by the board of commissioners.
It is a good substantial structure.
| well built and of good material and
could not be built for less price than
$5.81 per perch. The county and the
public now have the use of it and great
| injustice would be done the contractor
If he is not paid for it. He IL con-
scientiously and equitably entitled to
his pay.
The court has Jurisdiction to afford
| him relief.
This is a proceeding In equity
The burden is on the party claiming
a perpetual Injunction, and the court
will grant 1t only when the party shows
a clear right to 1t. 43, o. s. 526.
Courts of equity are liberal in grant
ing relief on the ground of mistake to
| prevent injustice where the party
asking It could not be charged with
culpable negligence. Beach on Mod
Equ. Juris. S4S 48 N. Y. 40S.
Culpable negligence is the omission
| to do something which reasonably
prudent man would do, or the doing
| Of something which such man would
not do under the circumstances sur
rounding each particular case. Or
1t is the want of such care as man
Of reasonable prudence would use under
similar circumstances. The Law gen.
orally seeks out and casts it's burdens
upon the party who is first and most
guilty. 40 N. H. 387-392.
The rule of diligence only requires
that the party shall have excerised the
degree of diligence which may be fair
ly expected from a reasonable person.
/ Beach. etc. Sec. "a.
1t is the usual practice of courts of
equity to aim at the general, practical
good and to grant relief where the
party is conscientiously and oquitably
| entitled to 1t. Id Sec. 40.
| The Jurisdiction to afford relief ex-
| tends to cases of executed contracts as
well as to those which are simply ex-
ecutory. Id Sec. II.
The consummatiOn of q transaction in
ignorance of the mistake and without
laches on the part of the party injured
gives the other party no immunity
| from making recompense nor does II
| deprive the court of power to remedy
the injustice. 81 N. Y, 227, a5 Fred.
| Rep. 81.
The surveyor was the agent of the
board of commissioners. 67 N. Y. $40.
| A mistake in written instruments
caused by ignorance, mistake or neg
| ligence of the craftsman will ne cor
rected in equity. Is Amer. and Eng.
Ency. of Law, 672, list OF cases there
cited.
In accordance with fumiliar maxim
of equity jurisdiction that "he who mp
plies for equity must also have done ji,"
the party applying for an in
junction must come into q court
of equity with clean hanGs and q clear
fconscience. 1 Beach OH InjunctiOns,
Sec. IA.
!. It is the strong arm Of equity
to be used only to pre-
vent irreparable injury to him
who seeks its aid. The remedy
for preventing wrongs and preserving
rights. Id Sec. 2.
| An injunction will be refused to COM
plainant when he has delayed his ap-
pIication until he has obtained an in
equitable advantage over the defendant
Id. Sec. AZ, 1853 N. Y. 49, 80. GA.
i On the question Of custom In meas
urement see 15 o. 8. 179. s
Il Great reliance is placed by counsel fol-