Evening journal., 1905-06-14
NO NON-SUIT IN
LANHAM ACTION
Court Declines the Motion
That Was Made to This
Effect
IMPORTANT POINT OWtLT UPON

When the Superior Court convened
this morning Judge Pennewil an
nounced that the court declined to
grant a non-suit in the case Of the
United States, use of Lanham and
Brother vs.. Joseph l.. Carpenter, Jr.,
and John p. Almond who were the
sureties for the late John Jacoby on a
$4,000 bond.
The principal grounds for asking for
S3,47S.66, which they claim is due them
for work done as sub-contractors under
Jacoby who constructed a large sewer
ia Washington. d. c.
William Prentiss, of Washington and
j. H. Harvey Whiteman, of this city,
counsel for the defendants. yesterday
moved for the non-suit. The motion
was opposed by T. Bayard Heisel and
Alexander B. Cooper. attorneys for the
plaintiffs and was argued all Of the
afternoon.
The principle grounds for asking for
the non-suit We're that the District OF
Columbia did not have the authority
to enter in to a bond in the name Of
the United States. and therefore the
bond is void and cannot be recovered
upon.
AN IMPORTANT QUESTION
In refusing the motion Judge Penne-
lwill said: This question is an inn
portant one and we desire to give it
more consideration. We will dispose
Of Il in the charge to the jury"
Mr.. Whiteman then opened the case
for the defense and during his address
to the jury said he would show that
/ this case was settled when another
] I
against the same sureties before the
Supreme Court Of the District of
Columbia, was disposed of. In the lat
ter case, he said, the plaintiffs were
awarded one cent damages.
He also said the defense would show
that lumber was no more material in
the construction of the sewer than
picks, shovels and other implements Of
work. 1t would be proved, he further
stated that the lumber was purchased
by Jacoby personally from Lanham &
Brother and therefore the sureties
could not be held responsible for
his personal debts, and furthermore
that there should not have been as
much lumber used as was claimed by
the plaintiffs.
T. Chalkley HattOn was the first
]
amined by Mr.. Prentiss and stated thai
he was a civil engineer and had design
ed and constructed sewers since 1889
He also had experience in driving tun.
nels for sewers.
Mr.. Hatton was asked if in his esti-
mation the timber that Mr.. Lanhan
testified was left in the sewer at Wash.
ington and for which he seeks to re.
cover was necessary to the construction
of the sewer. Counsel for the plaintif
objected to the question on the ground
that the contract in evidence showed
I the amount of lumber required. A
long argument followed.
The court sustained the objection and
counsel for the defense noted an ex
| ception. Practically the same question
was asked in four different forms, bu
witness was not allowed to answer
any of them.
Mr.. Hatton testified that he did no
think It necessary TO sink shafts IN
digging a tunnel 1000 feet long undei
similar conditions as were testified L
by Mr.. Lanham.
Mr.. Hatton was asked the following
, question.
state your opinion as to the nee
cessity of leaving lumber in the shafts
when they are refilled.'
Witness replied: Il know of no rea
son."
Mr.. Hatton was still on the stant
when court took recess.