Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-10
HagestrOm, ct al Sweeney ct al,
MuItnOmah County.

MidbO Isaac MidbO, Pete Christian
sen, and Robert Thompson, partners,
doing business under the firm name
and style of Pete HagestrOm & Com
pany. respondents, v ]. w. Sweeney
s. NJ. Blumauer and Isaac Blumauer,
partners doing business as railroad
builders and contractors, under the
firm name and style Of the J. W.
Sweeney Construction Company ap-
pellants. Appeal from MultnOmah
county. The Hon. C. U. Gantenbein,
Judge. Argued and submitted Dec.
10, 1911 Alexander Bernstein Bern
stein G. Cohen, on brlef for appel
lants. NJ. J. MacMahon, for respOn-
dents. Eakin, c. J. Modified.
This is an action to recover COM
pensation for work done upon a con-
tract and damages suffered by a
breach OF the contract
Plaintiffs, on July 28, 1909. con-
tracted with defendants to build a
railroad grade between certain sta
tions In Washington county, Oregon,
and TO complete the work by June i,
1910, for which defendants agreed 10
pay plaintiffs at certain rates, ac-
cording to the estimates Of the egi-
neer, for removing rock and earth
and for doing other work According
to the estimates furnished by the en-
gineer in charge, the work done, as
alleged by plaintiffs, amounted to
S6,173.4O, against which they admit
that defendants are entitled to credit
for board $1154.5O; hospital fees, $50;
supplies, $3S9O5; cash upon the con-
tract $l73645; tools, etc, $153164,
less a credit of $34.45. The total, as
stated, is $466l,46, leaving a balance
due Of $151194, no part of which has
been paid, although demanded.
For further cause of action, plain
tiffs allege that II is provided in the
contract that "the order to stop and
abandon said work shall be made IN
writing, signed by the contractor,
and shall be delivered to the station
men 30 days prior to the
date when such order shall take ef-
feet 4" When the work shall
cease at the expiration of said per
iod Of 80 days from the giving CT
such notice the work shall be deemed
to have been finally completed and
payment shall be made therefor in
the manner herelnbefore provided IN
paragraph 7, and this contract shall
be regarded as terminated and at an
end" That on the 2Sth day Of Feb
ruary defendants orally notified
plaintiffs to cease work; took pos
session of plaintiffs tools and imple-
ments and closed the boarding
house, so that plaintiffs were COM
PEELED to, and did cease work, and
left the camp that If they had been
permitted to proceed with the work
until June lst, they could have ac-
oomplished much work; that by viz
tue Of the cancellation of the con
tract, plaintiffs were deprived of pres
ent and future work. to their great
damage In the sum of $4,000.
The answer denies every allegation
or the complaint and aiIirmatlvey al
legos the contract briefly as set ont
In the complaint; that plaintiffs per
formed work Hereunder but that on
Feb 2S, 1910, without cause. thew
abandoned the work, and that defen-
dants have paid and advanced to
plaintiffs on the contract the sum of
$6'ltl'lS They also set up coun-
ter-claim for damages,
The reply denies the new matter of
the answer, except in certain partl,-
ulars. Upon the trial before a nry
a verdict was rendered for plaintiffs
In the sum of $llS4O5, and the sum
OF $1,000 damages. Upon a motion
for new trial, and as condition
of It's denial, $500 OF the damages H.
cluded in the verdict was. by plon.
TINS, remitted, and Judgment WAS
rendered accordingly. Both parties
appeal.
Eakin, c. ] Defendants assirn ~
error certain rulings Of the court IN
the admission OF evidence. which rri
ings we deem were not preiudiciaI
ana they need not be further consid-
era. They also assign as error the
instruction given by the court In tho
jury as follows III you fad that the
plaintiffs We're Improperly DISCHARGED
and not permitted to continua m, |
work under the terms OF the con /
tract then you may assess such dam |
ages as would reasonably common
safe them Tor the breach not 10 ey-
coed $1,000. which was duly cycsnt.
cd to- upon the ground that bor,
was not any evidence before The u,y
upon which 20 predicate a yerdi,; for
aamaess There was no proof of spc.
enc damages arising out o, I'm,
preach the allegation OF damages b,-
'ns that they We're deprived of pres
ent and future work to their grant
damages In the sum OF $4,000 Plain
''us testified that they have been all
work during most OF the time since
oe'ns DISCHARGED from the lob, that
'h'y nave been continuously at work /
whleh Is an admission that no suoh