Daily capital journal. (Salem, Oregon) 1903-1919, 1915-10-26
SAY DISTRICT DID NOT
GET A SQUARE DEAL
School Board Refuses To APP
peal Hughes Case and
Gives Its Reasons

The following report was submitted
to the school board last evening, by the
building committee, stating its reasons
for not appealing the suit of S. A.
Hughes, decided against the district:
To the Chairman of the Board or Di-
rectors, School District No. "a:
Your building committee would re-
port that the case of s. A. Hughes of
School District No. "a for the sum of
$3.50 claimed by Mr.. Hughes for the
construction of two high school chin
neys, has been tried in the circuit court
and jury has given Mr.. Hughes yer,
diet for the amount claimed by him.
The court instructed the jury, among
other things, as follows:
The court instructs you that the
plaintiff cannot recover the entire con-
tract price when defects or omissions
appear, for it is incumbent upon him to
show not only that they were unsub-
stantial, but also the amount needed
to make them good, so that it can be
deducted from the contract price and a
recovery had for the balance only.
The court instructs the jury that sub
stantial performance of building con.
tract to entitle the contractor to the
full contract price means only such
slight deviation as are inadvertent and
unintentional and not due to bad faith
and such as do not impair the structure
as a whole and can be conveniently
remedied without injustice and be paid
for by deduction from the contract
price.
The court instructs the jury that in
an action by contractor the burden of
proof is upon him to show a substantial
compliance with the contract, and if he
fails to do this he cannot recover the
full contract price. Willful omissions,
though in an unimportant respect, will
preclude a recovery by him. The spirit
of the contract should be faithfully OBJ.
served though the letter thereof fail.
Notwithstanding these instructions
the jury saw fit to allow Mr.. Hughes
the full amount claimed by him. Your
committee offered to allow Mr.. Hughes
to take judgment before the trial for
1925, thus leaving in controversy only
the sum Of $l25. Your committee is Of
the opinion that the instructions of the
court fully justified the committee in
not accepting the first chimney as il is
well known that in its construction, all
headers were left out, the dimension Of
the chimney was reduced from twenty.
five inches as called for by the con.
tract, to twenty-five and one.half inches
inside measurement, and the outside
measurement was reduced from fifty
inches to forty.nine inches. Your com.
mittee feels that the jury came TO a
wrong conclusion, but as the amount
involved is only $l25 and the cost of
an appeal would probably exceed that
amount to the district. As a business
proposition it would be better to pay
the Judgment than to prosecute the
case further and for that reason we
recommend that the amount of the
judgment be paid We feel like saving.
however, that in our Judgment the dis.
triet was entitled to what IL contract.
ed for and we cannot Bring ourselves In
believe that it is right that the district
should be compelled to accept and nav
for something that is less efficient than
the chimneys recommended by experts
employed TO advise us.
Respectfully submitted.
MAN o. buren,.
Il, T, BARNES.
Building Committee.