Cameron v. Chesapeake & O. Canal Co.

U.S. Circuit Court for the District of District of Columbia

Cameron v. Chesapeake & O. Canal Co.

4 F. Cas. 1129, 1 Hayw. & H.D.C. 158, 1843 U.S. App. LEXIS 456

CourtU.S. Circuit Court for the District of District of Columbia

DecidedAugust 30, 1843

StatusPublished

This text of 4 F. Cas. 1129 (Cameron v. Chesapeake & O. Canal Co.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cameron v. Chesapeake & O. Canal Co., 4 F. Cas. 1129, 1 Hayw. & H.D.C. 158, 1843 U.S. App. LEXIS 456 (circtddc 1843).

Pincite

Opinion

The facts of the case are, that after the contract was signed by the plaintiff and by the agents of the defendants, and while the work was in progress, there were material alterations in the kind of work to be performed; the contract called for rubble work, while the agents of the company required the • contractor or plaintiff. to do the masonry in scabble work, the latter requiring more time to do, and was therefore more expensive. The difference in the kind of work contracted for and the work furnished is thus described: Rubble work is stone brought from the quarry and dressed with the mason’s hammer, and in that fashion put onto the wall; scabbled work is stone first prepared by stonecutters, dressed on the face, joints and beds, having vertical joints. The beds in scabbled work are scabbled, and in rubble work they are natural beds.

The plaintiff read in evidence the sealed contract between the plaintiff and the defendants and the specifications annexed; and to show the amount of work done on the said aqueduct, read in evidence the various estimates from April, 1837, to the 9th of July, 1839, and stated that the action was brought to recover as well the balance admitted to be due on an estimate dated July 9th, 1840, as the various items credited to the plaintiff by endorsements on the back of the last estimate, show, as also the value of certain alleged extra work performed by the plaintiff, in scabbling all or a greater part of the stone put into the masonry of said aqueduct, and which said stone was required by the specifications to be of good rubble masonry, but which stone the plaintiff alleged was after-wards required to be scabbled by the orders of the defendants’ superintendents of masonry on said aqueddct, Duncan Grant and Mr. Laun, and had from time to time credited in whole or part to plaintiff in monthly estimates, scabbled or dressed rubble, at 31 cents per superficial foot, as contradistinguish-ed from the item of rubble stone mentioned in said estimates at $1.25 per perch, as appears in the said monthly estimates. And gave evidence tending to show that the work on said aqueduct was not performed or completed by the plaintiff until after June the 9th, 1839, but was executed so far as the plaintiff performed the same previous to May the 15th, 1S40, and that no work has been done on said aqueduct since the plaintiff left it. And further gave evidence tending to show that the said work was conducted after June 1, 1839, by plaintiff, with the knowledge and consent of the defendants’ engineers and officers, and was formally accepted by the president and directors of the said canal company as all that was required of the plaintiff after July 9th, 1840, and gave in evidence certain documents tending to show that the duty of a superintendent of masonry on the canal was to judge and affirm the work done, and to cause it to be taken down at the expense of the contractor in case the work was not done according to the contract in his judgment, [1130]*1130and that he had no power to vary or make a new contract, and that the superintendent of masonry was an officer of the canal company, appointed by the engineer but paid by the commissioner, and in case of a difference between the contractor and the superintendent, he would refer it to the engineer. And gave evidence tending to prove that the superintendents of masonry on plaintiff’s aqueduct, during the time he was engaged in constructing the same, were Duncan Grant and Mr. Laun.

And the plaintiff thereupon offered evidence to prove that the superintendents of masonry on defendants’ aqueduct during the time he was engaged in constructing the same were the said Laun and Grant, and offered evidence to prove that while engaged in said work, the plaintiff was ordered by said superintendents to scabbie all the stone required for said aqueduct, and accompanied said evidence with an effort to show an adoption by the defendant of said scabbled stone by the same being estimated as scabbled stone in several of the estimates, and by payirig through their commissioner the amount of such estimates as appears by the receipts endorsed on said estimates, to the plaintiff, and further accompanied said evidence with an offer to prove that the said aqueduct was greatly improved in durability and strength and in appearance by scabbling the said stone, over and above what he was required to scabbie by his specifications; and that the officers of the defendant, saw and did not object to the scabbling of said stone, but the work was accepted after said scabbled stone was put into the masonry, and that no objection was ever made by the defendants or any one in the defendants’ behalf, to said stone being scabbled by the plaintiff while the said work was in progress.

Whereupon the counsel for the defendants objected to so much of the said evidence offered by the plaintiff as tended to show any directions supposed to have been given to the plaintiff by the said superintendent or superintendents or either of them, to scabbie all the stone required for the said aqueduct; which objection was sustained by the court. Judge Morsell not concurring or sustaining the objection, being absent at the trial.

The jury brought in a verdict for the plaintiff.

Defendants, through their attorneys, made the following motion for a new trial:

1. Because the court erred in refusing to instruct the jury that the plaintiff was not entitled to recover in this form of action.

2. Because the verdict was against law.

3. Because the verdict was against the evidence.

Motion overruled and judgment entered on the verdict.

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The facts of the case are, that after the contract was signed by the plaintiff and by the agents of the defendants, and while the work was in progress, there were material alterations in the kind of work to be performed; the contract called for rubble work, while the agents of the company required the • contractor or plaintiff. to do the masonry in scabble work, the latter requiring more time to do, and was therefore more expensive. The difference in the kind of work contracted for and the work furnished is thus described: Rubble work is stone brought from the quarry and dressed with the mason’s hammer, and in that fashion put onto the wall; scabbled work is stone first prepared by stonecutters, dressed on the face, joints and beds, having vertical joints. The beds in scabbled work are scabbled, and in rubble work they are natural beds.

The plaintiff read in evidence the sealed contract between the plaintiff and the defendants and the specifications annexed; and to show the amount of work done on the said aqueduct, read in evidence the various estimates from April, 1837, to the 9th of July, 1839, and stated that the action was brought to recover as well the balance admitted to be due on an estimate dated July 9th, 1840, as the various items credited to the plaintiff by endorsements on the back of the last estimate, show, as also the value of certain alleged extra work performed by the plaintiff, in scabbling all or a greater part of the stone put into the masonry of said aqueduct, and which said stone was required by the specifications to be of good rubble masonry, but which stone the plaintiff alleged was after-wards required to be scabbled by the orders of the defendants’ superintendents of masonry on said aqueddct, Duncan Grant and Mr. Laun, and had from time to time credited in whole or part to plaintiff in monthly estimates, scabbled or dressed rubble, at 31 cents per superficial foot, as contradistinguish-ed from the item of rubble stone mentioned in said estimates at $1.25 per perch, as appears in the said monthly estimates. And gave evidence tending to show that the work on said aqueduct was not performed or completed by the plaintiff until after June the 9th, 1839, but was executed so far as the plaintiff performed the same previous to May the 15th, 1S40, and that no work has been done on said aqueduct since the plaintiff left it. And further gave evidence tending to show that the said work was conducted after June 1, 1839, by plaintiff, with the knowledge and consent of the defendants’ engineers and officers, and was formally accepted by the president and directors of the said canal company as all that was required of the plaintiff after July 9th, 1840, and gave in evidence certain documents tending to show that the duty of a superintendent of masonry on the canal was to judge and affirm the work done, and to cause it to be taken down at the expense of the contractor in case the work was not done according to the contract in his judgment, [1130]*1130and that he had no power to vary or make a new contract, and that the superintendent of masonry was an officer of the canal company, appointed by the engineer but paid by the commissioner, and in case of a difference between the contractor and the superintendent, he would refer it to the engineer. And gave evidence tending to prove that the superintendents of masonry on plaintiff’s aqueduct, during the time he was engaged in constructing the same, were Duncan Grant and Mr. Laun.

And the plaintiff thereupon offered evidence to prove that the superintendents of masonry on defendants’ aqueduct during the time he was engaged in constructing the same were the said Laun and Grant, and offered evidence to prove that while engaged in said work, the plaintiff was ordered by said superintendents to scabbie all the stone required for said aqueduct, and accompanied said evidence with an effort to show an adoption by the defendant of said scabbled stone by the same being estimated as scabbled stone in several of the estimates, and by payirig through their commissioner the amount of such estimates as appears by the receipts endorsed on said estimates, to the plaintiff, and further accompanied said evidence with an offer to prove that the said aqueduct was greatly improved in durability and strength and in appearance by scabbling the said stone, over and above what he was required to scabbie by his specifications; and that the officers of the defendant, saw and did not object to the scabbling of said stone, but the work was accepted after said scabbled stone was put into the masonry, and that no objection was ever made by the defendants or any one in the defendants’ behalf, to said stone being scabbled by the plaintiff while the said work was in progress.