The Birmingham age-herald., 1910-10-13
GRUBB RULES THAT TALLY CAN RECOVER Has Only to Prove Amount ot
 Damages PLAINTIFF CLOSES CASE Almost Entire Day Was Spent in Argu- ing Point Yesterday Upon Which Judge Grubb Ruled Late in
 the Afternoon
PLAINTIFF CLOSES CASE

One of the most important of a host
 of legal points involved in the case of
 Ben Tally against the Alabama Western Illinois Central railroad was decided yes-
 tcrday by Judge William l. Grubb for the plaintiff. Boiled down, the decision was
 in effect that the company is liable to
 sub-contractor for work performed ana
 delivered even though the sub-contractor held a contract with the original con tractor and not the railroad company.
 The attorneys for the plaintiff and de- fendants argued the point of contracts for several hours yesterday. It was shortly before 5 o'clock when Judge Grubb overruled a motion by MT. Percy of the defense to exclude the previous testimony of the plaintiff. Caruthers
 Ewing for the plaintiff argued against
 MT. Percy on the point
 It was set out by the defense that the railroad company held no contract with MT. Tally as the company dealt only with the OIlSlhd tohNA"SNSAf -N-"
 Bates Construction company, and this
 case had been settled in previous suit The plaintiff set up that a verbal agree
 ment had been entered into with the com
 pany that Ben Tally as sub-contractor
 would have proper specifications from the company engineers.
 Mr. Ewing, in his remarks, said that | had ruled t1a the contract with the TallyBates Con- struction company was void, that de cision voided the sub-contract held by
 Ben Tally, and that Tally was entitled t'
 look for some one to pay him.
 After the court opened yesterday morn
 ing MT. Tally again resumed the stand | and continued the narrative of his ac | ton. He-in answer to questions-tolo
 all the details of a visit to the Illinois
 Central officers and of their telling him | to go ahead. He was cross-examineo very thoroughly by MT. Percy for the de- fense. After Mir Tally had concluded his
 testimony the plaintiff closed its case. MT. Percy then made a motion to strike
 the testimony from the records and jury | because they had not proved the com
 plaint. Arguments were heard upon this
 motion until the decision of the court. 1 The court held that the company cer- tainly had received a railroad from some | body, and that inasmuch as MT. Tally had spent almost a lifes wage In build | ing the track that he had a right to look | to whomsoever was using that construc- | ton for his pay. The opinion was ex-
 pressed by the court that the non-exist- ence of a contract between the plaintin and the defendant did not obviate the plaintiff from looking to some one-that | is the railroad-for payment of his claims | The point settled is held to be the most important yet decided in connection with the case. It means nothing more
 than Mir Tally will recover whatever damages he may prove from the rail road company. In substance it was a
 charge to the jury that they must ren- mind constitutes a fair compensation for | his wrong
 The defense will begin to offer testi-
 mony this morning. In the suit of MT
 Tally for s100, 900 and interest A. s. Bald win, chief engineer for the Illinois Gen. | tral, will take the stand. He arrived here yesterday from Chicago to offer his tes- | timony It is gathered that the com pany will offer testimony to show that several of the most prominent engineers | in the country looked over the work and they all agreed that the company | had acted very literally with the con tractors and sub-contractors.
 At the rate at which the case is going | 1t is expected that arguments will begir tomorrow morning Caruthers Ewing and Gen. Luke E. Wright will both speak | for the plaintiff, while MT. Percy vii speak for the railroads. The arguments in the case coming from three eminent
 lawyers are expected to be among the | ,..ost i.toraetipo ovar hoard In the city