The Montgomery advertiser., 1907-04-21

JJ', concur.
 HENDERSON BOYD LUMBER COM PANY vs. COOK. | Assumpsit.-(Decided December 20 1906. 42 So. Rep. SSs.) l. Contract; compensation; extrs | work.-A person doing work known a, old grading" which was not included in his contract, but which was neces. certain work contracted to be done, is entitled to additional compensation fol | whatever the extra work was reason ably worth.
 2. Evidence; opinion evidence; ex' pert testimony: construction of con tract.--As to whether "old grading is or is not included in "surfacing' mentioned in the contract. 1t is com petent for those shown to be acquafn- ted with that class of railroad con. struction work to say what the tern ''surfacing' means, and whether il included "old grading" or not, which was necessary in that particular place 3. Same; evidence of custom7-It is competent to show by those acquainted with that class of railroad construc- tion work what is the custom of rail- road contractors doing the same class of work as to additional compensa- tion for such work, and the reasopa- ble amount of such compensation.
 f. Customs; establishment; evil dence; jury uuestion.--Where a rail road contractor sought to recover for extra items of work done outside the contract and testified that all the ex- tra items were necessary and that with items of this kind it is the custom of railroad contractors to charge 1t at actual cost. plus ten per cent, this evidence afforded some proof of the custom, and as to its suff1ciency, 1t was a question for the jury
 5. Damages; liquidated damages and penalty; forfeiture on breach.-A contract providing that the contrac- tor was to receive s35o per mile for doing certain work three hundred of which was to be paid as each mile was accepted, and the $50 to be held back for each mile until the contract was completed, which was n guarantee Tor the completion of the work, such a stipulation was for penalty, and was not liquidated damages.
 6. Work and labor; contract; sub stantial performance; quantum meruit Where a substantial part of the work under the contract had been complet- ed and accepted. the person doing the work is entitled to recover thereon on a quantum merutt, and the other par ty sustaining no damages from the failure to complete, the person doing the work is entitled to the full req sonable value thereof.
 Appeal from Coffee Circuit Court.
 Heard before Hon. H. A. Pearce.
 Affirmed Opinion by Simpson, J.
 Tyson, c. J., Haralson and Denson, JJ., concur.
 FARLEY, EFT AL vs. MOBILE AND
 OHIO RAILROAD CONWAY. e Action for Damages for Loss of Prop
 erty by Fire-(Decided Jan. IS,
 1907. 4e so. Rep. 7F)
 1. Railroads; setting fire; negligence: evidence--The plaintiff made prima facie case raising the presumption of negligence of the defendant in setting fire among the stubble. The defendant made full proof of the proper equip ment and handling of its engine. thus shifting the burden back to the plain tiff Held. evidence, that quarter of a mile from the place of the fire and while going up grade, the locomotive emitted a great deal of sparks. and that several fires during a number of years were occasioned by sparks from defendants engine, was not sufficient to raise a conflict in the evidence as to the proper equipment and handling of the locomotive.
 2. Appeal; review; harmless error; instruction-Where the general charge is properly given for defendant; the refusal to give charges requested by plaintiff asserting correct legal prop ositions is harmless error.
 8. Fire; instructions: assumption of fact-A charge for plaintiff postulat- ing 8 finding in his behalf on a disbe- lief by the jury of defendants evil dence. assuming as a fact that plain tiff nas made out his case, is properly refused.
 Appeal from Tuscaloosa County Court
 Heard before Hon. H. B. Foster.
 Affirmed. Opinion by Dowdell, J.
 Tyson, c. J., Simpson and Anderson, JJ., concur.
 ALI E,NI FIT All .s,s GAI nWEI l. NV AR Ii