Show 55 FIRST BiST DISTRICT nicy COURT arsu an t jion hon V 11 emars Jaso clate justice presiding THURSDAY may 16 2 p in case 11 hilcy vs 11 if 11 amro merson mr percival J barratt barri tt attorney for defendant moved that ta tho 0 fee bill in above case bo be taxed as a 8 the tile amount was only f for or 2 and the costs amounted to 2720 27 20 20 and contended that it bein being a case in which tho the justice of t tho I 1 peace had jurisdiction should not bavo have been brought in district court a and ud incur an attorney fee of 10 kima ball heywood argued on tho the other side court stated th that a t fe fees es would bo allowed in all cases over dallin co s caso case resumed mr gough recalled testified to several days delay by awaiting the engineer to cross section the tile sections then a rush to get out of the way of the track layers cross examined fart part of tho delay was on the subcontract sub contract work counsel butted and rebutted each other vigorously on the su subject b of rebutting ekiye evidence nc c until his honor hon or ruled to it allow low the above evidence evid on cc mr craner corro corroborated berated the above both sides now rested but there was no rest for the tile wicked it was a millers rest though a change chanc go goto to the jury gentlemen said bis ris honor and to the jury they wen went t mr heywood reviewed testimony in favor of tho the plaintiffs dwelling on the fair and reasonable charge made the efficiency of the engineer mr nash and the delays and damages sustained in ta the ie various ways already spoken of the plaintiffs only got out of tho the whole amount received the rest went to other parties governor stone in his blandest blankest blan dest tone complimented tho the jury on their good honest looks and ond presumed their sympathy was for the man who labors the tall cedars of lebanon the dust of ages the tile depths of earth and vastness of ocean being all brought before their gazo gaze like a beautiful dream but on tho the otner side tho tile poor man must bow to the majesty of ho alle law tho the stubbornness of the facts an and the preponderance of tho the evidence alluded to the contract as already reported arted from his opening speech what mr dallin agreed to do was tho the question not what the work was worth reviewed tho the evidence as to the proper mode of measurement mr dallin had bad not once denied that he was to receive the engineers i oat wo t oa s at tho case biad been cp no leg to stand on why should defendants def dof f fend ants pay for dirt floating in the air air when they contracted to havo have it on the railway grade iphy should they pay fora for a hole in the ground when ben they contracted for a bank above it A contractor burldine buil dine a house hag has to ta give i possession of of it to the owner in in a good and finished condit condition ion the conflict in tho the evidence as to price per yard must ba be left to the jury to decide ho he paired off the witnesses for both sides claiming the preponderance for liis his side mr smith a good honest looking fellow to spare ho he a also so flaunted that initial contract and final settlement in full as well as in law before the jury with majestic palen mien accompanied nied with earnest eloquence saying ay in ho he was driving the last nail in into t 0 tho the coffin of plaintiffs caso case and scaling beling be ling it up hermetically until the se sea shall ashall give up its countless dead 1 selah err 0 cap ca pt t R smith called the jurys attention to tho tile greater number of yards allowed allo wed plaintiffs by defendants account than by their one own engineers gi measurement les sabat percentage con tage deducted aa as it ought to be as well as the wasteful work of tho the wild whirling wind to the court he lie quoted a decision dec ision of the supreme court of ut utah all territory let utah given in the case of robbing robbins vs woodhull et a al and other cases from the late united states digest court adjourned to a in tomorrow in row MAY may 17 i a in dallin COs co s case continued mr kimball addressed the jury i for tho the plaintiffs going over the testimony minutely showing that there was no dispute as to section that tho the sections were not all lei let at once gave tho the dates of each separ separate ate contract to work no epe cefic prices agreed upon for we have put you down i for au an other mile was all the contract made plaintiff was entitled d to rca rea pay for the work on n related tho the delays that oo 00 oc burred and the other air cir cur cum stances which combined to t put plaintiff to extra anc and unexpected expense as to the diffen once between the two engineers ii in abo biedes and results of mcay re roenea plaintiff were not bound by b them neither had bad they agreed t to 0 work under the U P Com compi company lauy rules of which they knew bothi lothing ing As to valuation of 0 f work by wit nesses of both parti parties C wl Who I 1 0 knew ati it better than tho the men who did it hindered hampered and rushed as they were it was a signa significant fact that mr dallin still owe owed hia unable to kiy them only went into mr dallin D 8 bands hands defendants making direct an payments to plaintiff plain tifT s men on n mr callins Dal linB lins orders although mr dallin gave orders to tho the amount amo of the 1200 and odd dollars ad to be due plaintiff it had not been shown that mr dallia dallin accepted defendants account but positively i dively denied it having called 30 mr 51 Carl carlisle islo to one side and planting tho the present suit forthwith the court charged tho the jury wherever they ahn J jury should bryd find a specific cun contract tract and it specific price plaintiff would have to abide by it even though he lie was a loser on n the other hand if there mis was no contract he was entitled to a fair compensation for the work done As to the fact of a contract or n no 0 contract having been proven the jury were the solo sole judges written specific contracts entered into hold good unless there is such a breach on behalf of one party as will justify tho tile other to ignore it there is no precise form as to what constitutes a settlement of account it must be shown that both parties went over tho the books together or had an au opportunity to do bo so when they do so and thus arrive at a conclusion and agree upon a certain sum due cither either party that would constitute a settlement A receipt would not be essential it would be mere prima ma facie evidence eviden c then read the authorities supporting the above stated yiew view rowan miller of los angeles cal vs david kay claim f for or one carload of oranges shipped from california P J barratt for defendant fen dant capt R smith plaintiffs jury im paneled capt it smith stated tho case for plaintiff lt claim in ing tho the delivery was to be on board ave the cars at los angeles and that plain plaintiffs tills were not responsible for mishaps on the railroad d as the oranges were in good condition when put on the cars mr barratt followed claiming 1 that the oranges were to arrive in good condition and that the issue lay as to shipment the depo deposition of mr geo D rowell was read as to custom in packing and shipping oranges referred to defendants letter of june 30 1883 shipped tho the carload in good condition at los log angeles as no reported bysacker by packer stricken out as hearsay evidence none were frostbitten frost bitten mr R V millers affidavit was read the fruit was first class in flat boxes well ivell filled and is well isell ell packed packer said eo so what said was stricken out I 1 the fruit was not frostbitten frost bitten overripe they ought to arrive in in ogden infix or eight days in marketable condition the depositions of the at los angelea angeles were read corro berating boratt ng the above mr tolmie boock bookkeeper ell to D kay testified to seeing ye the arr ayk 1 n an y of tho tile agn be thrown away A As a many a as 3 boxes were rotten the frei freight those boxes at 86 85 cents a box amounted to 50 all taken out and sorted forthwith arrival cross exam examined ined bill date july 4 shipment nt mado made on adi time five days mr was in mr kays employ in last was avas notified on tho the that he should go on tho the to tho the depot to fetch tho the orange oranges which c h he lie did when he be hand handled W tho the boxes the bad orange dust would fly up in hb his eyes corroborated previous witness as to throwing away the bad oranges mr IV kay gave corroborative evidence said ho be counted bad bo boxes aes out 0 ot f 3 2 5 mr it P harris testified that tha the he dealt in in oranges oranges shipped in m july ought biot not to be frosted hie the hot weather would affect them if it too long in transit captain U R smith addressed the jury tho oranges orang esno no doubt were in in good condition when leaving los angeles if defendant auld get half of them good at that late season of tho the year he lie would make an enormous profit ridiculed defendant defendants ants 3 pica plea of frostbite frost bite in july mr P J barratt followed P arguing agu on t the lie plain testimony of the ogden witnesses as to the bad con coil of the oranges on their arri val and short timo time 5 days they were in transit somebody in court raised a baull laugh with tho the following pu pun n I how 10 av could the oranges bo be good when wuen the cy were marked D 10 K decay 7 the court briefly charged tho tile jury who retired and returned after an hours liours absence with will a sealed verdict court not being a in session 2 pm api ino the jury T found 0 a verdict for defendant a and id against dinst tho the plaintiff fr no 0 o causer causa of a action at 2 pm the jury in the dallin dalli a ato to ys carrigan carlisle case came caine in with a written verdict in favor of plaintiffs and against the defendants for the jury were vere polled and found to be unan ni inious thirty days were allowed to file rio a motion for new trial and in stay ot of execution goodwin goodwill vs thoa thos dec dee continued for tho tile term george I 1 p seagers vs vig robert J dilill T aliu dismissed without prejudice robert J hill and 11 II W 0 margary vs goo P Sc agers notion to set off judgment for costs against a judgment of R J hill ii goo P V seagers 0 allowed cavo cave aimley vf v H hammerson Am inerson percival tt J barratt arratt moved on oil behalf of defendant that exema tion levied upon by tho the sheriff in in above case be released kimball coywood Hoy ey wood for plaintiff ordered that the plain tiM produce in court on monday next statement schowine amount earned by defendant within 60 days |