The Montgomery advertiser., 1906-03-13

with the terms of the contract which includes the plans and specifications therein. would not have the alleged
 weakness or defects in other particu- lars about which the witnesses have testified. The burden. therefore, is upon the plaintiff to fairly satisfy you, from all the evidence, that Hood and Company failed to erect the structure in a skiIlful and workman-like man ner, and in accordance with the plans and specifications, and further as counsel comedies that had the building been erected in accordance with the plans and specifications as prescribed by the contract--if you find that was not the case--the building so erected, would not have ahe alleged weakness or other defects about which the wit nesses have testified.
 ''If you find from the evidence that Hood and Company did not erect the structure in a workman-like manner, with proper material, according to the plans and specifications, and further that if the work had been properly ex- ecuted in ali respects, according to the plans and specifications, the build ing would not have been unsafe or had the defects mentioned by the several witnesses; then, the defendant, the surety company, would be liable un- der the evidence, for all the expense prudently incurred in putting the struc- ture in the condition in which 1t would have been, if completed according to the contract, at the time the KahI Montgomery accepted 1t, provided such defects were discovered within a year If there were defects, not caused by following the plans and specifications, which were discovered within a year, 1t is not at all material that all the causes of the defects, about which the witnesses testified, were not discov- cred or remedied within a year; and the Kahl Montgomery, in that event. would be entitled to reimbursement for all expenditures required to make the building as free from defects and as safe, as you may find 1t would have been, If the contract had been com pleted according to its terms: pro- vided the architect or workman em- ployed to remedy the defects was pos- sessed of reasonable skill, and exer- cised due care under all the circum- stances, in devising asd working the remedy. The sum which the Kahl Montgomery expended in making the repairs, is not necessarily the measure of recovery, if you find it entitled to recovery.
 The proof of the amount actually paid for repairs has been admitted in evidence only to enable you. in view of all the other evidence, to deter mine what was the reasonable cost of the repairs. made upon a proper plan by a workman possessed of reasona- ble skill and exercising due care. In making the repairs the Kahl Mont gomery cannot charge the surety com pany for any repairs beyond such as were reasonably necessary to com plete the building, and to put 1t in the condition in which 1t would have been, if the contract had been fully executed according to it's terms. If the repairs went beyond this, making better and stronger building than the original plan provided, the cost of such repairs, to the extent they went in making the reconstructed building an improvement upon the building as it would have been if completed ac- cording to the contract, should be de- ducted from the amount of the repairs. for which The Fidelity and Deposit Company, the surety. Is liable--if you find the surety is liable.