CITY OF PORT WASHINGTON v. THACHER, 245 F. 94

EVANS, Circuit Judge (after stating the facts as above). Error is assigned because the court received evidence over defendant’s objection-showing the number of bacteria found in the water at various places. In order to show the cracks in the pipe, if any, were insignificant or trivial, plaintiff made certain tests. He ascertained the number of bacteria in a given quantity of water 700 feet, 1,400 feet, 2,100 feet, and 2,800 feet from shore. Tests were also made to determine the number of bacteria in the same amount of water at certain places in the city.

It appeared that the number of bacteria decreased, the further one went out into the lake. It also appeared that the number of bacteria found in the water in the city corresponded to the number of bacteria found in the same quantity of water 2,800 feet from shore.. In support of this testimony it was claimed that, if the pipe was leaking badly, that fact would be disclosed by these experiments; for, if the water entered the pipe 700 feet from shore, it would have a great many more bacteria than if it entered the pipe through the intake 2,800 feet from shore.

While not at all conclusive, we think the evidence was relevant and instructive, and bore upon the issue of substantial compliance. Error is also assigned because of the admission of evidence over defendant’s objection, and given in response to hypothetical questions dealing with the length of time ordinarily or reasonably required to do certain work. This evidence bore upon the reasonableness of the amounts claimed by the city to have been necessarily expended in repairing the intake.

No error was committed by the learned trial court in permitting the plaintiff to submit hypothetical questions to his expert witnesses on his own theory. A party is not required, in framing hypothetical questions to adopt his adversary’s version of the case. Jones on Evidence, 903. Error is assigned because the court erred in refusing to- direct a verdict for defendant. In support of this motion defendant contended that plaintiff’s completed work failed to meet the tests provided in the contract and was not a substantial compliance therewith.

Plaintiff in error was seeking to secure a water supply of unquestionable purity, and it was entitled to an intake well-nigh perfect, and one which would meet any test that the parties saw fit to make. Appreciating this purpose, and the necessity of strict compliance with the terms of the contract, the court was justified in examining alleged imperfections with the closest scrutiny.

On the other hand, it must be borne in mind that the pipes were laid in water of considerable depth, and no test in the ‘method designated was made by the city until some three years had elapsed from the date when the city took over the work. It should also be borne in mind that the city had an engineer to supervise the work and a man constantly on the job to see that it was properly done and in accordance with the specifications. While the contract called for the air test, it did not provide that the test should be made by the plaintiff.

Defendant was never precluded from making the test called for by the contract. It used the intake continuously from October, 1907, and was at all times in position to determine whether the completed work answered the calls of the contract. A test or examination made some two or three years after the intake was completed, and when imperfections might be traced to causes other than those attributable to the plaintiff, was not conclusive. Upon all the evidence, we are of the opinion that the motion to direct a verdict in defendant’s favor was properly denied.

Error is also assigned because the court refused to set aside the verdict and to grant a new trial, because the verdict was excessive. Many of the figures are not in dispute, and, accepting plaintiff’s statement of the account, it is impossible to sustain the finding of the jury, except by allowing $1,100 for burying the 800 feet of pipe.

In fact, plaintiff in his brief says: “Tlie jury unquestionably have allowed plaintiff $1,100 tor burying the pipe. * * * It is evident, also, that the trial judge considered that it was an item concerning which the jury should find tor the plaintiff.” The figures amply support this statement. The amount paid plaintiff while the work was in progress was $5,717.69. The city paid for repairs, etc., $3,873.59. The verdict of the jury was $3,482.31. These three items make a total of $13,073.59. Exclusive of the item of SI,~ 100 for the 800 feet of trench, the amount due plaintiff was $10,900.

This would indicate an overpayment on this basis of $2,173.59. However, plaintiff contends that the item of $3,873.59 should be reduced, because the evidence warranted the jury in finding that a considerable portion of this item was unreasonable. But if we take from this aggregate of sums actually paid out by defendant such sums as the plaintiff contends should be deducted, we are still unable to account for the difference of $2,173.59. Viewing the figures from every viewpoint, it is impossible to reach any other conclusion than that stated by counsel for plaintiff in his brief and set forth above.

The jury allowed" plaintiff $1,100 for burying the pipe. This item should never have been left to the jury to determine. The facts are not in dispute, and it was for the court to construe the contract. The trench in which the pipes were laid was 12 inches deep. The contract and specifications called for the pipe being covered one foot. It follows that the allowance of this item of $1,100 was error. But plaintiff was entitled to recover, and was erroneously denied, interest on $2,382.31 from November 10, 1910, the date fixed in his bill, to the rendition of the judgment.

The legal rate being 6 per cent, in Wisconsin, this interest was $771.38. The difference between the $1,-100 erroneously allowed by the jury and the interest item is $328.62.

It is therefore ordered that, if the defendant in error, within 20 days after this opinion 'is announced, file a remittitur for $328.62 in the office of the clerk of the District Court of the United States for the Eastern District of Wisconsin, and a certified copy thereof in the office of the clerk of this court, the judgment, less the amount so remitted, will be affirmed, with costs of this court to the plaintiff in error; but, if this is not done, judgment will be reversed, with costs to the plaintiff in error, and with directions to grant a new trial. <gss>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes <&s»For other cases see same topic & KEY-NUMBDR in all Key-Numbered Digests & Indexes