Shulte v. Hennessy

Day, J. I. The demurrer was properly overruled. It is directed to merely a part of a sentence. It is not competent to 1. practice: demurrer. assail a clause, or a sentence, or several clauses or sentences in a count or petition by a demurrer. If the matter objected to was considered improper, it should have been reached by a motion to strike it out. Hayden v. Anderson, 17 Iowa, 158; Benedict v. Hunt, 32 Iowa, 23. [355] II. Tbe plaintiff introduced C. IT. Henderson, one of tlie arbitrators, to whom, was submitted the measurement of the 2. arbitra-evidence. ' tower, who, in substance, testified that he did not consider the paper attached to defendant’s answer, marked exhibit “C,” correct; that he signed it- on Keenan’s representation that it was correct; that he discovered its incorrectness the evening of the day on which he signed it; that he did not deliver to Schulte & "Wagner the award which he had in his possession for that purpose. To this testimony it is objected that it is not competent for an arbitrator, after the publication of an award, to impeach it. This testimony, however, tends to show that no final award was made; that one of the arbitrators, and the one intrusted with -the award, discovered a mistake in it soon after he signed .it, and that thereupon he refused to deliver it as his award. Eor this purpose we regard the evideuce competent. III. The contract stipulates as follows: “It is further understood that the party of the second part (plaintiffs) shall 3. contract • construction. iui’Msh all materials and tools except the ashler and said party of the second part is to receive for said work, viz: $2.75 per perch for the first ten feet of said section, and an increase of twenty-five cents per perch for each ten. feet in progression up said section until the full height of 48 feet shall have been reached, and thirty-eight cents per superficial foot for dressed ashler work set in walls.” Appellant claims that, under the contract this 38 cents pays for dressing the stone and setting them in the wall, and that, evidence as to the number of perches in the entire wall, was incompetent. We do not think this is the fair and reasonable construction of the contract. The evidence very clearly shows that the dressing of stones and the laying of them in walls, are usually contracted for separately. There are several modes of dressing stones, differing very materially in cost. If this 38 cents per superficial foot was intended as the compensation for dressing and laying in the wall, the contract is very imperfect and indefinite, for plaintiffs would receive no more compensation for laying these dressed stones, if they extended into [356] tbe wall two feet than if they extended into it one foot or less. In fact, the compensation being governed by the superficial feet, the thickness of the stone, though making a great difference in the cost of laying them tip, would make no difference in the compensation; and, further, no increased compensation would be paid for the higher portions of the tower, notwithstanding the contract provides for the stone to be laid by the perch, an increased compensation for each successive section of ten feet. We have no doubt that the true construction of the contract is that it provides pay by the perch for all the stone laid in the wall, and in addition to this 88 cents per superficial foot for dressed ashler appearing upon the contour of the tower. This would prevent the plaintiffs from recovering for any dressing which did not, after the erection of the wall, appear upon the surface. IY. It is objected that the testimony of all the witnesses of plaintiffs, except Mullany, as to the custom of measuring masonry, was improperly admitted, because they were not shown competent to testify to the mode of measurement. This objection is without merit. The witnesses were all practical mechanics, of many years’ experience, and they show themselves fully acquainted with the custom as to measuring. Y. It is claimed that the testimony as to the work on rock, not put in the tower, should have been excluded because not 4_.. fault of party. jnovided for in the contract. It is true the contract ¿[-¡q not contemplate the payment for this work • until it was put in the tower, but plaintiffs claim, and the evidence tends to show, that they were prevented from completing the tower by the failure of defendant to pay as stipulated. This view also answers the objection that all of plaintiffs’ evidence is incompetent because they did not build 48 feet of tower. YI. No specific objection is urged in the argument to the instructions given, nor to the refusal of those asked. The charge of the court seems quite fair, and is, so far as we see, unobjectionable. The evidence fully sustains the verdict. AFFIRMED.