Show ijUESTION FOR A JURY t RUling of Judge HaIlett In the Parleys Par-leys Conduit Case + GRANTS ANOTHER TRIAL + MAY wi FIRST ROUND IN CITYS SttIr AGAINSTEIIM t Damage l Suit of Hoytsville Irrigation Co vs ontario Co Transferred to Federal CourtJolm and Dennis Winn Fugitives From Justice ArrestedDtlings of the Courts 4 In the suit of Joseph H Smith et a1 vs Salt Lake City for payment for alleged al-leged additional work in the constrll tlon of the Parleys canyon aaueduct Judge Moses Hallet of Denver med 21 order yesterday In the UnIte States circuit court granting the mot m for a new trial before a juryo Tile case was heard In August last before P hi Williams as referee who found for the plaintiff in the sum of lOO41O 111 December1ast Judge Hallett listened to the plaInti1f exceptions and objection to the referees report and now S1l5 tains the same The costs that have accrued aC-crued to date shall abide the event of the suit arid if the plaintiffs shall I1t another trial re over 110 more than was allowed them at the last trial by the referee aU costs hereafter accruing shall be taxd to them The amount iaimed by the plaintiff against the city is nearly 100000 includIng rtcrest Judge Halletts opinion i < as follcws Under contract with this ddendant plaintiffs built an aqueduct about six miles long which is called tile Parleys canyon adueduct In the course of construction certain work was dome by plaintiffs which they alleged to lie aj ditional to the work mentioned in the contract and for yhich they el1ia11l1 I ed payment of the city as extra work I Their right to coninensatlon fcc such work was sustained by this court on the motion for a new trial following the first trial decided in November 1897 At the second trial In August ISIS much testimony was heard relating to the quantity and value cf such work Upon that Question the cost of the work was material to he ascertained for if the business was ororly and economlca11y considered the cot would be the best evidence of valu Fie opinions of comDetcnt witnesees as to the cost of the writ by contract would not be excluded because such opinions would be some evidence of its valul to be considered connection with the actual cost Such Hide11cl 0 the cost by contract might he strotJ > enough to overrule the testimony as to the actual cost especially if it should appear that the work was not well managed by those who did It or that it did not iii fact cost more than the reasonable price by contract At the first trial plaintiffs put In testimony timon relating to the quantIty cost and value of the extra work und defendant I fendant offered nQ testimony touching those matters contending that it was not liable for suel work except as provided pro-vided in the contract At the second trial both Darties Out in testimony on the subject and that became the principal controversy 1n theca the-ca e The testimony was widely divergent diver-gent that of the plaintiffs showing the value to be 30 or 40 per cent more than the testimony offered by defendant The referee appears to have acceded the testimony of the defendants witnesses wit-nesses and thIs is made ground of ob jction and exception to his report by plaintiffs There are other questions the case but it is not necessary to discuss dis-cuss them at this time In the course of the two trills plain tilts cauea nyc witnesses woo were cCU1cerned in building the I1lluedutt I and were familiar with the details of the work all of whom testified as to the quantity and value of extra work done by tIle plaintiffs One William H Evans was the engi l acer in charge under the plaintiffs employment em-ployment another Edward Le Prohon was an inspector of the work employed by the city another Robert C Sy monds was an engineer in the city engineers en-gineers otllce who made plans for some of the culverts two others Charles Seuffert and Henry Sturloclr were stonecutters who worked on the aqueduct aque-duct These witnesses with full knowledge edge of the subject supported plaintiffs plain-tiffs demand in respect to the quantity cost and value of the extra work In controversy xo witnesses wer called by the defendant de-fendant to the saine point who had the same knowledge of the subject Defendant De-fendant had three wItnesses A F Do limus the city engineer F C Kelsey an engineer and O R Young an engineer engi-neer who worked on the aqueduct But they were not examined on the question of values They were called by the defendant de-fendant an witnesses on other Ooints and the omission to examine them on the ouestion of value affords an inference infer-ence that they would have SU1Jorted plaintiffs demand if inquiry had bppn made on the sUbject Defendant preferred pre-ferred to call witnesses from other occupations oc-cupations some of them from a eon iderable distance railroad engineers and other engineers who knew something some-thing of the cost of such work in other localities and who had no knowledge of the work in controversy excet as could be got from going on the ground and making examination of the surface sur-face and such parts as are exposed to view These witnesses were unquestionably unques-tionably of high character and ability but they had not such knowledge of tha situation ao would enable them to I speak with accuracy The question for consideration is whether the llninngs uc the referee based upon the testImony of witnesses who had little knowledze of the subject can be said to be sun ported by the greater weight of testimony I testi-mony when there is in the record the testimony of other witnesses of eQual credibility who speak from fun 1nowl edge of the subject and when the party in whose favor thq findings were made has failed to can witnesses within I1R command who had the same knowledge of the subiect 1n that view the case appears to he for the plaintitIs sufficiently at least to demand that the facts shan be submitted sub-mitted to a jury the ancientalbl ff the common law which although much reviled in recent times still stands as the most satisfactory exPonent of cn troverted facts In an action at law The order of reference and the report of the findings of the referee will be set aside with directions for a tri11 at the next term to a jury in open curt If the plaintiff shall recover more than was allOwed to them by the leI Ores at thc sedond trial tl1eywi1 be entitled en-titled tv all their costs If 1es Is recovered re-covered by them or nQ more than Wag allowed py the referee the josishencc forth accruing will be taxed to them If doubt shall arise in tho minf af counsel as to the power of the court to take order In the premises as here suggested authority for such action will be found in Robinson va Mutual Benefit Life Insurance company and in 16 D1atehford 194 Federal Cases 1036 1 |