f14 .. "
I'EDERAL REPORTEB,
vol. 49. ',. to 191 to
oncuts Nps. P, 9, 10, 11, 13,14, 15,and 16 in sections tllefonowing, extent: On c'ut
'5 to 60 percent. ottbe total contents ot the cut. fe'"'' 9 """40'"' '" .. fe,,'. 10' '.40'"" ,"U ". ,;' , 11 · 50' " . . 14;,"" .. "fe" 4; ; IS .. 40" ",," I I ' " .. "" " .. & 15 ", 50 " '" " ".. " """ ... 16'.. 60" · .. .. '.. " N ".. ' ..
,: "
"
;,
II.. " ". .'.? ," " .· '.,"
The other ,outs were estimated with substantial accuracy and {aimess. The oourtrhss, taken Mr. Brooker's of the total contents of these cuts, and has ascertained the amount alre41dy paid according to the old clsssificatiQn,'.and has also computed the amount due according to the Dew classification. The sum due is found to be 631 578.19, for which amount and" interest from the time this suit was brought a lien it allowed.
SUlIKEB8
e. CHIOAGO, S. F.& C.
RY.
Co.
(OfnmU ' Ooon. 1/J; D.MC,.OUri, No D. December '1, 189L) ','
In EqUltly. Suit by James W. Snmmersagalnstthe Chicago. Santa Fe & OalttOJ.'Dla RaUwayCQmpany to recover for grading road. 8.T., NUl/Au and C" B. MatZock, for plaintiff. , 6ardtmr LathroP. BBA HZt 6uthrlB, and T. L. Montl/om61'11o for defendant. ' ' THAnm,Distrlct JUdge. What has been said in deciding theLetDiB Case, 49 Fed. Rep. 708,lllappUcalJle in a measure to this case. The contracts involved in the two 'cases are practically the same. but the work done by Summers was done 65 miles,w8IltoftheLewis, Wood & Penny work, and, as a whole, appears to bav., beep. ,of a less difficult and .expensive The total amount .ofmatt)rlal taklllll from all the cuts on the of the road constructed by Summers was only about 22 per cent. of the gross amount taken from. the cuts on tbe five sections constructed by Lewis, Wood & Penny in Missourl;A, very considerable portion of Summers' work was in the valley of theCharltoQ river, and the court is satisfied that the bulk of the material handledwa8 much easier to move than on the Lewis, Wood & Penny sections·. QP\lrt had the advantage of hearing all of th,e oral testimony in .thiscaee. and. it ",iUaumee to say that it created a very strong impression that Mr. \vas liberallyestlmated under any construction of the cotlttadt;That has been confirmed by a careful perusal of the testimonY' sinee the case argued. It is true that the dlvl!lion engineer in charge of:.this'portfon of the work construed the "plowing test" as applicable to hardpan" cemented gravel. etc. ; but that is not an adequate reason for disthe tlnal.8stimate, unless the plaintiff sustained some injury. If the test actualIy all the loos.e-rock cla.ssification that he was fairly eIj.titled to, the estimate shtiuld not be disturbed. At the conclusion of the work,alId' eVidently with a 'full knOWledge of all tbe facts, Mr. Summers : t ,
BA'l"tLlll fl. K'ARTHuB.
716'
expressed' bitnselt as well pleased with the manner in which be had been treated by the engineers. He also stated, in substance, tbatthere was not much materia) on his portion of tberoad, entitling him to loose·rock classification, and that he had ma4e a v,ery considerable sum $10,000 or $16,000) out of the contract. This, in itself, is persuasive evidence that plaintiff sustained no injury by reason of the misconstruction of the contract. Taken in connection with all the other testimony in the ease tending to show the character of the material,how It was handled, and the amollnt of loose rock actually estimated and paid for, it has served to convince the court that the recovery in this case should be limited to the sum admitted to be due and alrl'ady paid into court. JUdgment may be entel'ed for that amount. with costs up to the time the money was deposited with the clerk. Subsequent cos1.8 will be taxed against the plaintiJf.
BATTLE
et ale
tI.
McARTHUR et
at
(CCrouu Court, E. D. Mis,ouri, N. D. December f. 1891.) L CoNlTR'lJO'I'IOlir OJ' RAILROAD-CoNTRACTOR', LIBN-FILING ACCOUNT.
Under Rev. St. Mo. 1879, S 8202, providing that the lien ofa railroa4 contractor must be filed .wlthin 90 days next after the completion of the work, eto., and that all actions to enforce such liens must be commenced within 00 days after filing the lien, and prosecuted without unnecessary delay to final judgment, and that no lien shall continue to exist for more than 00 days after it is filed. unless suIt is instituted within such time, (Id. S 8205,) successive liens for the same labor and materials caunot be filed. The tHing of one account, sufficient to create lien under the statute, exhausts the contractor's power to inoumber the property; and the 00 days run from such tilDe. and cannot be extended by the filing of an amendment or .. new lien within the original OO.day&.
a
.. RBcllJPI' IN F11LL-EVPBCT.
During the execution by subcontractors of a contract for railroad frequent complaints were made by them as to the manner in which the chief englDeer estimated cel¢ain kinds of excavation, and these complalnts were made to the contractor, and by him to the rallroad company; and the contractor succeeded in having the estimates raised in some instances. HeLd, that a receipt "in full," given by the subcontractors to the contractor after knowledge of all the facts. and tender and payment of an amount on the basis of the engineer's final estimates, was biDding between the parties.
.. COMPROMJSB-CoNSIDIlR....TION.
Even though a person does not receive all that is due to him, yet, wbere the sum actually due is in dispute, the avoidance of litigation is a sufticient consideration to support a settlement fairly made with full knowledge of all
In Equity. Suit by Battle & Cameron against McArthur Bros. and the Chicago, Santa Fe &: California Railway Company to enforce a mechanic's lien. James H. AnderBOn, for plaintiffs. Jame8 a. Davia, for McArthur Bros. Gardiner Lathrop and Ben. Eli Guthrie, for Chicago, S. F. &: C. By. Co. THAYER, District Judge. Two questions are presented in this case which do not arise in either of the other cases just decided,-LewiI v. Railway Co., 49 Fed. Rep. 708, and Sumlller, v. Same, Id. 714.