Schwerin v. DeGraff
Supreme Court of Minnesota
Plaintiff, a sub-contractor, brought this action to recover for work and labor performed by him for defendants in the construction of the First Division of the St. Paul & Pacific Railroad. The schedule annexed to the complaint included, among other items, a charge for excavating 2,800 yards in January, 1869, and a charge for extra work on section 32. Both these items were put in issue by the answer.
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Plaintiff, a sub-contractor, brought this action to recover for work and labor performed by him for defendants in the construction of the First Division of the St. Paul & Pacific Railroad. The schedule annexed to the complaint included, among other items, a charge for excavating 2,800 yards in January, 1869, and a charge for extra work on section 32. Both these items were put in issue by the answer. The action was referred, and at the trial the plaintiff testilled, among other things: “ The work was to be measured by the engineer of the railroad company. His measure was to be taken as…
1Opinion of the Court
By the Court.
Berry, J.
We are unable to perceive how the finding of the referee as to the number of yards of excavation done by plaintiff in January, 1869, and as to the value of the extra filling at the curve, can be justified upon the evidence. -We are inclined to think that, as there was testimony in the case tending to show that a part, at least, of the January excavation was never estimated by the engineer, and that he made no estimate after December, it was not necessary to plaintiff’s case that he should prove the amount of his-excavar tion by reference to the engineer’s estimate. The…
2Cited by1 opinion
- Schwerin v. De GraffSupreme Court of Minnesota · 1875