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HomeMy WebLinkAboutPlott v. BOC 1915 (part 1) Road Records J. T. Plott vs. Board of Commissioners 1915 pt. | o SUMMONS FOR RELIEF.—Judge.—Printed and for sale by Brady, the Printer, Statesville, N. C. 6-9-'09-1M, SUMMONS FOR RELIEF. “State of North’Garolina, To the Sheriff ot te Dou gre hereby Commanded to summon 20 Le. Pn L. | eee tad > FAL he 2... County-—-GREETING: the defendant’ above named, if FS be found within your County, to be and appear before the Judge of our Superior Court, at a Court to be held for the County of Sen ALL at the Court House in Attn on the AL Monday after the / Monday of . GAactobec fa the same beitig the. / 5 day of VP+y 19¢¢%-and answer the complaint, a copy of wWhicty will bé Geposited in the office of the Clerk of the Superior Court for said County, within the first three days of said Term, and let said Defendant take notice if they fail to answer to the said complaint within that time, the plaintiff will apply to the Court for the relief demanded in the complaint, Hereof fail not, and of this summons make due return. Given tinder my hand and seal of said Court, this . day of fees Cour 44, C WT County. a J Pics Der Bt6, STATE OF NORTH CAROLINA, \ In the Superior Court. pe (a ot a ccs oe Cee ourselves bound unto...............4 Se ~ OD en nt oe the Defendanté...{n DG PP of... AER cee Bn however, if the Plaintiff L te xh, cost as the Defendant... may recover of the Plaintiff CU Mutt oo sconces tc cesta Rate res csecsees tac kant ysyee ...being sworn says he is worth the sum of two hundred dollars over and above his debts, liabilities and ee ohn executions. Sworn to and subscribed before me this.. day of emai 19.6%... y (TR ULM ge Bs My Commission axp!ires DecB!, 1914 weencevcccoccesewocesecccses scccecescoeccomasestpenstnieesosedt wr & i & _ a , edie an § ; mus = O is en gy i < —_— &F a ms § cc € — | Lt 3S o 5 = 3 eo . ZS <:#: Yu mam + & — er Ce a 8 a were North Carolina,) Superior Court, Iredell County.) May Term, 1914, Je Be Plott, — Board of Commissione County of Iredell 4 © ee et eet Bee eet See + € nere Arlee t*+4anr c ~~ RJ Abs y 4 ract leading.from statesville to ‘ pring in said [y, & Aistance of nine acreed to «~ nkments reqi Oo form the roadWay, all excavations and embankments for altering the line of intersecting roadie ants) r-excare TOHe Be empankmen ts Ww S44 ‘ ) that may be authoriged by the engineer > dk rk +4, . » ana e¥eaetta a8 * accordance \ ; the lines and Yraades 2.7 raniments forth therein a engineer. Seventh: That whe 10th da f April, 1913, the plaintiff? and the defendant entered into three several Pr ) a py ey Rana ast lionbo toad, terms, condit Which leave: On said contract, road- + Way on What KnoWnR as tne 3 é 2 A 56 S27. 76 cubic yards 323. 49 WHEREFORE, i favor azainst the dete interést from November ist, ] 0 paid, cost of action, and fo entitled to. North Carolina In the Superior Court Iredell County May Term,1914. J.T. Plott, Plaintiff o-=-VS-- ANSWER. Board of Commissioners of the County of Iredell Defendant. fhe defendant answers the Complaint and says: --First-- That it is true that M.A. Feimster, R.F. Gaither, R.C. Little, N.A. Lewis, and W.L. Matheson compose the Board of Commissioners of the County of Iredell; that all of them were duly elected by the voters of Iredell County at a General Election for State and County Officers in November,1913, except H.A. Lewis, who after said election was appointed a Commissioner by the Clerk of the Superior Court of Iredell County; and they qualified entered upon, have been and sre now , performing the duties required of the Commissicners. --Second-- That the allegations contained in the second paragraph of the Complaint are not denied. --Third-- That the allegations contained inthe third paragraph of the Complaint are not denied. ~-Fourth-- That the allegations contained in the fourth paragraph of the Complaint are admitted. --Fifth-- That the allegations contained in the fifth paregraph of the Complaint are admitted. --Sixth-- That the allegations contained in the sixth paragraph of the Complaint are not true and are denied. ~-Seventh-- That the allegations contained in the seventh paragraph of the Complaint are admitted, except that portion thereof, . which refers to the Sixth paragraph of the Complaint, which said Sixth paragraph has heretofore been denied. --Eighth-- That the allegations contained in the Eighth paragraph of the Complaint are not true and are denied. --Ninth-- That the allegations contained in the ninth paragraph of the Complaint are not true and are denied, The truth being that the plaintiff on the Cool Springs Road removed 30,575.86 cubic yards of dirt amounting to $6,985.97, and was paid thereon $6,536.39.. --fenth-- That the allegations contained in the tenth paragraph of the Complaint are not true and are denied. The truth being -that the plaintiff removed more cubic yards of dirt on the Chipley Foard Road then he alleges, to wit, 54£56.5 cubic yards in place of 53,602.94 cubic yards, and that he was paid therefor $10,679.79. -«Bleventh-- That the allegations contained in the eleventh paragraph of the Complaint are not true as therein stated. The truth being that the plaintiff removed 29,225 cubic yards of dirt on the Lewis Ferry Road amounting to $6,263.37, and was paid there. for $5,925.51 , leaving #357.86 in favor of the plaintiff. --Twelfth-- It is denied that the defendant owes the plaintiff as alleged in said paragreph of the Complaint, but admits that the plain- tiff should have a credit on the East Monbo road, for which the County is due #349.94. -oThirteenth--= That the allegations contained in the thirteenth paragraph of the Complaint are not true and are denied. The defendant alleges that if the items set forth in said paragraph arose , as defendant is informed, it was because of the defective con- struction of a part of the plaintiff's road, which he was building, which road became unsafe, because of wash outs, for which he was liable and not this defendant. ~-Fourteent h- That the allegations contained in the Fourteenth paragraph of the Complaint are not true and are denied. And for a further answer and defense to the plaintiff's cause of action, the defendant says: First; That the defendant carelessly andi negligently failed and refused to comply with his contract, and build eaid roads,referred to in the Complaint, according to the plans, profiles and specifications, and under the directions of the authorities of the County; that by reason thereof the defendant was compelled to expend ,on the roads attempted to be graded and eonstructed a great sum of money, in order to have said toads according to the contract, namely, $800.00, which sum was expended by the defendant in completing sadd roads, and carrying out the contract made by the plaintiff, with the defendant for the construction of said roads. Second: That the defendant has tendered payment bo the plaintiff for al] due him because of the attempted con- struction of said road and now offers to pay the same into Court as a full compliance of its agreement and contract with plaintiff. And having fully answered the defendant asks that it recover its costs in its behalf expended and O19. eee. hence without day. LG Bh pees, for Defendant. M.A. Feimster,R.F. Gaither, R.C. Little, N.A. Lewis, and W.L. Matheson, after being duly sworn, each for himself, say that he has read the foregoing Answer, that the same is true of his own knowledge, except as to those matters and things stated therein upon information and belief, and as to those he believes it to be true. Lt Lo Sworn to and subscribed before me this the Gn day of July,1914. A. ft : Onan, d&ht. Cd Cc. ‘ North Carolina In the Superior Court Iredell County May Term,1914. J.T. Plott, -Vs= AMENDED COMPLAINT BY LEAVE i j The Board of Commissioners for “4 OF THE'COURT. i the County of Iredell. The plaintiff complains and alleges; --First--~- That in addition to the work set forth in the Original Complaint, that he did extra work on what is known as the Chipley Ford Road, am ounting to ----------- --$384.10 On the East Monbo Road 377.60 On the Cool Springs Road 233.20 the Lewis Ferry Road 802.80 ~ Makine 2 total for oxtre work $1797.70 That in addition to the yardage and removing of dirt as alleged in the Complaint includes work of hauling, piping, clearing and grubbing on the road bed on the roads aforesaid, being items not embraced in the contract, and for which he is entitled to pay in addition to the work specified in the cone tract. Second-- That the payments alleged in his Original Complaint was in part for all the work that he had done for the defendant , 7 : sate construction of said roa including the extra work aforesaid. 4 Le hi rer | ~ Counsel for Plain North Carolina Iredell: County JT. Plott, -VS- AMENDED ANSWER BY LBAVE The Boxrrd of Commissioners for OF THE COURT, the County of Iredell The defendant answering the amended compisint says: --First-- That it is true that the plaintiff did extra work on the roads indicated in the first paragraph of the Amended Complaint, and it supposes that the figures therein contained are correct, but for accuracy demands proof of the same, but it denies that he i: ntitled to pay therefor, as he has already received payment for all the work done by him for Iredell County, except an amount, wh admitted to refused by €c, for the Defendant. North Carolina In the Superior Court Iredell County Before S.J. Ervin, Referee. J.T. Plott, Plaintiff ae Board of Commissioners of Iredell County, Defendant. ' Counsel having agreed that they would not request the Referee for argument in the case, because. of the pressure of business, upon the part of each, simply state the contentions, and leave the case to the said Referee. MONBO ROAD, There is no controversy between the parties to the action, upon what is known as ,the Monbo Road, as the defendant admits that it is due the plain- tiff $349.94 ,which sum it is alleged was embraced in, and tender made 1f by the defendant. The Court will observe ,that the alleration . of the plaintiff and those of the defendant, upon this road, as contained in the twelfth paragraph of the Complaint and Answer, is so near together, that there can be but one conclusion reached, that is, the engineer of the plaintiff,on that road, and the engineer of the defendant, each, may be correct in their statement; the only variation being, the evi- dence discloses the fect that Mr. Fireth measured and counted the fill which extended out towards the ebtream, where the bridge was to be erected, fur- ther than the specifications called for, and the de- fendant's engineer stopped according to his profile. Mr. Fireth, therefore, calculated more earth than the County Engineer, and the County should not be liable for whatever amount of earth removed, that was not contemplated and embraced in the profile. The Court will recall from the testimony,and from the facts, upon the profile, that the plaintiff had a competent man to make his calculations upon the Monbo Road, but for some reason or other, he was not retained to make the calculations and do the work on the other roads; another and an inexperienced engineer, two years experience was substituted for Mr. Mreth, is relied upon by the plaintiff for accuracy in these transactions Reference to the testimony discloses the fact that the engineer for the County had been in the employment of the Government, and had long experience in the character of work under investigation. The Court will observe from the contract, variations and discrepancies in the testimony of Mr. Derby and the requirements of the contracts between the parties to this action, toughing the slopes upon there roads. The con- tract calls for one to two and Mr. Derby allowed one to one; this would make a considerable variation between Mr. Roach’s figures and Mr. Derby's. The evidence shows that Mr. Derby did not comply sith the contracts, but included more dirt than the plaintiff removed upon these slopes. COOL SPRINGS ROADS. The contention of the plaintiff, that he removed 32,230,96 cubic yards of dirt on the Cool Springs Road, is untenable, and it devolves upon him to satisfy the Court that his calculations are correct. The Court will recall the testi- mony, in the case, that this is the road upon which the County was compelled to expend something like $600.00, by placing one Leinster there, with a force to construct this road according to contract. The Engineer for the County must be accurate and is to be relied upon, for the reason, that an inspection by the Court of the figures on the Monbo Road, wherein there was no a4ifference, and of the Chipley Ford Road, where there was a difference. The defendant's engineer shows more yardage than the engineer for the plaintiff. The plaintiff cheerfully adopts the figures of the defendant's engineer on the Chipley Ford Road, and aske the Court to adopt his figures in other differences, as set forth in the ‘ninth paragraph of the Answer. This fact should be evidence to the Court that, there is " a faint belief" in the mind of the plaintiff that the defendant's engineer is correct, because he shows to the plaintiff more yardage, than the plaintiff himself, through his two year 01d engineer claims removed. He insists , in the ninth paragraph of the complaint, that hie figures should be taken and not those of the defendant's engineer. When defendant's figures show in favor of the plaintiff, he cheerfully adopts them, but when adverse to him, he insists the defeniant's engineer is in error. LEWIS FERRY ROAD. The greatest difference in the estimatesand calculations of the engineers of the parties hereto, appears to be upon the Lewis Ferry Road. The plaintiff alleges that he re- moved 36,527.76 cubic yards of earth ; the defendant in- sists that he only removed £29,225 cubic yards. This is the road, as appears from the evidence that the serious conten- ¢ions was upon as to the width and the amount of dirt removed. It is respectfully submitted, from the evidence, as disclosed in this case, that the Court should find this con- tention in behalf of the defendant. This would be true, as Counsel understands the evidence, even if the rule as to burden of proof was not invoked. The engineer of the plaintiff, testified, that his figures were based upon the road accordi:ig to the profile; that the calculations therefor applied to a thirty foot road in width, when the testimony discloses, that at many places upon this road, the plaintiff restricted the width thereof to 26 feet, and in one instance,counsel recalls a width of only 24 feet. Taking the road as a whole, the average width would be about 28 feet. The Court can readily see, that a restriction of two feet upon the length of this road, in width, wonld at least make the difference that appears in the figures of the engineer as set forth in the Eleventh paragraph of the Complaint and Answer. CROSS-SECTIONS. The Court is respectfully requested to take the cross sections, as introduced in evidence, by the plaintif:, as made by Mr. Derby, his engineer, and by making measurements from the supposed center, as indicated by the cross sections, will see that in many instances, the road shows a width of 12 feet on one side thereof and 14 and 16 feet on the other side. A cross section without the true center would ghow dirt removed, which the proper profile of the road did not contemplate. This must be true or the engineer has by his cross sections so changed the location of the road from that indicated in the profile, that extra and extraordinary curves would be in the road. UPON ALLEGED FORCE ACCOUNT. The plaintiff under solemn declaration and oath swears in the 13th paragraph of his complaint, "That during the grading and construction of the aforeeaid roadways, the plaintiff did extra work, on what is known as the force account, under the direction of the defendant's engineer," items in detail, aggregating a total charge off these roadways for extra work at $323.49. The plaintiff had the benefit of the statement of the defendant and attempts to add a great further alleged force account as set forth in his amendment. But the defendant has introduced evidence more reliable, it is respectfully submitted, than that of the plaintiff, namely, the testimony of Engineer Roach, that all work upon the force account was taken into the estimates, were in- cluded in the general sum estimated to be due by the County, and the same was paid slong with the yardage as each esti- mate will show. There is no evidence in this case to con- tradict it. (See= page 50 of the evidence.) These estimates were made each month and were put together and the entire yardav~e found ,force account added thereto, compared and coincided exactly with the original profiles. After all the additions were made, and the deductions were made by the engineer, a true and accur- ate statement was given to the plaintiff of the status of his account. It will be observed from exhibit filed with Referee, that on the Cool Springs Road there was a deduction made for levelling; on the Chipley Ford Road, a deduction also made on the Lewis Ferry Road, but nome on the Monbo Road. As Counsel recalls the contract, the width, slopes and other changes, pertaining to these roads, could be varied by the engineer and no other. HAULING. In the matter of the hauling of pipes to these roads and the location of the same, the referee will recall » that there was a diversity of opinion, but it was not denied by Mr. Plott, the plaintiff, that he was to do this without charge. Counsel for the defendant,considers it only fair, in places where the road béd was washed out by freshets, and the plaintiff was required to go there and rebuild, that he should be paid a reasonable sum therefor, and if this was not allowed by the engineer, as Counsel now recalls in one or two places, possibly the plaintiff should be allowed something by the Court. The Court will also recall from the evidence that at least one of these places was caused by defective work upon the part of the plaintiff in the action, and if this is found to be true, the plaintiff woulda not be entitled to recover what he claims at that point . This instrument is not intended to be a full brief, but simply a pointer, calling the attention of the referee to the main contentions in the case. It is respectfully submitted that the following is binding upon the plaintf£ff , "that all disputes by and between the parties to the contract, the County Engineer, or any individula acting in that capacity, for the County, shall be referee in all cases to determine the amount or guantity of work, which shall be paid for under this contract, and to determine all questions which may arise concerning the contract relative to the fulfille ment of this contract, and the stipulation is set up as a bar to the plaintiff's right to reoover anything ex- cept #hat is shown to be iue him by said engineer. Respectfully submitted, Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N, C. 5-15-’07-2M. STATE OF NORTH CAROLINA, personally to appear before the Court House in on the... Ky uext, then and there to testify and the truth to say in behalf of in fi ge- said Court depending, and then and there to be tried, wherein Plai and O-# . (oot eee foo for Lo Defendant . ¢ GAL you shall in no wise omit, under the penalty prescribed by law. Drtlortiaes ‘Clerk of our said Court, at office WITNE , , , the... Monday—efter—the Monday~ tr. () f/ Gk Nei 2A Clerk Superior Court for Grech tt County. Fa a me, Defendant > SUBPOENA--Ciil For Term, 190 No ecued dap? 4 LCLEeL Lip? >» Th / 9 /¢. by road eng the cheek: %y Susipoee 0 Find AUH, UZellace ees ey LA ie Jha rae 4a ws Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. 2M—5—,04. STATE OF NORTH CAROLINA, personally to appear before t the Court House in. Mala ile Me on the i hay f he Bisa LOLS next, then and there to testify and the truth to say in behalf of in a certain controversy before said Court depending, and then and there to be tried, wherein fp BTOE ‘ Plaintifé.. and ond ff Wrvcenns time shiTe Coan F a Dee weee_ is Defendent..... And this you shall in no wise omit, under the penalty prescribed by law. Witness pf ethecinn , Clerk of our said Court, at office in Vs | > tter—tre ~t ee hLe “ F ~A_-2 <2. o Clerk Superior Court for he e —letf County. .«. Plaintiff Against Bude f. Seeuane ® Defendant 4 | © SUBPOENA--Civil, - bred C at, a : Term, 190 ff arr North Carolina In the Superior Court Iredell County J.T. Plott, Plaintiff oe VTS = The Board of Commissioners of Iredell County, North Carolina. 6 ' NOTICE , j i 2 The plaintiff and the defendant in the entitled cause i will take notice that the undersigned Referee will proceed to hear said cause in Statesville,Iredell County, North Carolina, September 68,1914, beginning between the hours of ten and eleven ofelock, and will continue from day to day until the hearing is finished, when and where you can appear with your evidence. This August 28th,1914. 2 Gr, J.T. Plott, Plaintiff Ovs~- fhe Board of Commissioners Of the County of Iredell, Worth Carolina. ~ WOPTrOER. We accept service of the within Notice. This Aug. 28,1914 or kee lrw K A Gr2<h, maton of d fami fr a daffe eine’ Gack ch “afer, < , Gh Oreck Rez aa_ sll dcoimaay AP dae Te Lotte amt Ax GACond : a the, st Bea a<ack £2 eS Aa Hal Zoetice, be Ob ering GEO ) he flaca yy aed Af oe 4 7 4. Fa a, eae Pom Lhey iy. oe Sf Eve» he Gt cen DOL ie fe ie oF act Pst odes, F hfifirwn ony b-Leen! Kb ata, me £264 leew POSE fesfotedy Teil of lou aS fork, anne : oo. bt on K Civil Bee ee and for sale by Brady, The Printer, Statesville, N. C. ? aM—S—,04 yee 7 STATE OF NORTH CAROLINA, , s ’ TO THE SHERIFF OF Mee County--GREETING: Dou are Hereby Commanded to Summon... Hee. LA... personally to appear before the the Court House in sg ete on the next, then and there to testify and the truth to say in behalf of in a certain contyoversy before said Court depending, and then and there to be tried, wherein CL. ta. Kae of Crem tenon fer LOZ 7 Iu Defendent..... And this you shall in no wise omit, under the penalty prescribed by law. _—_—— Witness ae , Clerk of our said Court, at office in Plaintiff... and W the Monday after the Monday in Uns hb a 1 hep. Le Afr. ee ce C Clerk Superior Court for rele tk County. filer Against Defendant SUBPOENA--Civil. nor heo. Lh, Bepreieh, * AND WILE Y 2 06 <6, -o (ot€ Ce Plaintiff A... <> Jie. Ws Die To Term, 190 pre, BoA. Vy 7 f ; At / (irr. 3d ~ ei Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. §-15-'07-2M. To THE SHERIFF OF YOU ARE HEREBY COMMANDED TO SUMMON the Court Houseg®- - on the aw es STATE OF NORTH CAROLINA, bub, Defendant . And this you shall in no wise omit, under the penalty prescribed by law. WITNESS, St 3 , Clerk of our said Court, at office Monday after the Monday >- IUMALX county . (LZ Plaintiff Again oj st on tA Co LO Defendant SUBPOENA--Civil. | rare Fist ‘ + * 3 SSS eee roe = North Carolina. Superior Court. Iredell County. oo eo aan J. T. Plett |Boafd of Commissioners of ’ Iredell County. Te the superier Court of Iredell Ccunty:< The above entitled acticn having been referred to me by crder entered herein to take and state an acccunt of the mat- ters and things in litigation between the plaintiff and defendant, I proceeded after due notice te the parties to hear such evidence as the parties chose to coffer at the Ceurt House in Statesville cn September the 8th and 9th, 1914, all the evidence being herewith sent. On this evidence I find the following facts. Findings of Fact. ej-< I find that on October 19th, 1912, the plaintiff and defendant entered into a written contract (herewith sent, marked Exhibit No. 11) under the terms cf which centract, the plaintiff was toc do the grading on a certain highway in Iredell County know as the Cccl Springs Read in acccrdance with the te-ms of said contract and te be paid fer all excava- tion at the rate of 23 cents per cubic yard for all earth excavated, removed tc and depcsited in the fills and embank- ments along said highway, the same to be completed by June let 1915. -2<- I further find that on April 10th, 1915, the plaintiff . ( and defendant entered into written contract with each cther 4 t 4 y of Like tenor (the same being sent herewith marked Exhibits } mes. 12- 13 and 14) for the excavation and grading of three | other highways in Iredell County, known as and called the | Bast Monfep Read, the Chipley Ford Road and the Lewis Ferry Road. The Bast Moukay Read, extending a distance of six i} miles in length was to be completed by May lst, 1914. The | Chipley Ford Road of twelve miles in length was tc be com~ ' pleted by October 10th, 1913 and the Lewis Ferry Read cf the ' Length ef seven miles was tc be completed by February lcth, 1934. On all of these Roads the Ccntracts previded that the plaintiff was tc be paid at the rate cf 21 1/2 cents per | cubic yard for all excavations cf earth removed, graded and placed in fills and embankments along the line cf said Roads. “i= I further find that the plaintiff completed his werk on the line of the Cocl Springs Read by the first cf May, 1915, on the Bast Monkey Read abcut the first of December, 1915, on the Chipley Pord Road about September lst, 1915, and cn the Lewis Ferry Road, except a small peice of grading, the cest of reducing which would amount to a cost cf abcut $50.00, on December lst, 1913. I find that the said work Was done under the orders and directions ef the defendant's en- gineers and after the plaintiff had, as he thought, com- plied with the terns of his contract, he asked the enginesrs cf the defendant in charge cf said werk if the same was satisfactory, and that said engineer went over said lines of road and pointed out certain defects in the perfcrmance of gaid contract by the plaintiff and that thereupon the plaintiff went over said Roads and did the further werk which had been po® nted ow ~y said engineer and fully com~ plied with said directions, except as to the mmmkism reduc” tion of fgrade for a short distance on the Lewis Ferry Road, , t ti ‘ | above referred tc, which was nct called tc the attenticn cf | the plaintiff until after his read force and cutfit had been removed from the County. Thereafter the defendant tock charge cf said roads and tcp sciled scme cf them and has been using all of them. I therefcre find that the plaintiff substantially complied with the terms cf his contract. ~ie I further find that the plaintiff in the ccnstruction of said highways did extra work not provided fcr, cr required ef him, under the terms of his contract in the removal cf reck and in clearing and grubbing land along said rcads and in hauling and placing drain pipes under contract that he was 4 tc be paid for said extra werk, and that under the terms of said contracts the plaintiff is entitled to be paid fer said extra work the sim of Twe Theusand and Ten and 20/100 ($2010.20) Dollars. Of this extra work $233.20 was done cn the Cool Springs Road, $377.60 on the Bast Monb@ Read, $596.60 cn the Chipley Ferd Road, and $802.30 on the Lewis Ferry Read. I further find that after the plaintiff had completed the excavation and grading cf the Chipley Ford Read and had erected and constructed the necessary fills and embankeents along the line of said Read, placing under waid fills and embanikanents drainage pipes of the size and dimensicns fur- nished and directed by the defendant's engineer for the purpose of carrying under the said fille and embankments the water passing thereunder at pointe where certinse streams and ravines intersected said road, a heavy rain@ fall came and swept away portions of said fills and embankments and that thereupon conorete culverts were installed by defendant | inetead of drainage pipes tc carry said water, and the ; Pe eet pe See a2 ts a : ESS: — : aE Fy . SS SS plaintiff was ordered and directed by the defendant to re= ———— SS build said embankments and pursuant te said orders and ee directions so given, the plaintiff rebuilt said fills and em~ bankments, sc washed away, at an actual cost cf $323.49. I find that the washing away cf the fills and embankments, which the plaintiff was required to rebuild, was due to the |fact that the drainage pipes furnished by the defendant 's en- gineer and which the plaintiff was directed to place under said fills and embankments were insufficient to carry the water passing thereunder and net te any defect in the ccn- struction ef the fills and embankments, and I therefore find that the defendant is liable te the plaintiff fcr the ccst ef rebuilding said embankments, amcunting tc the sum of $323.49. -6- fhe principal dispute between the parties here hewever is net as to the amount which shculd be allowed the plaintiff fcr extra work (all of the items set forth in paragraph four supra having been conceded by the defendant and cnly the item set forth in paragraph five being contested) but relates te the question of the number cf cubic yards of earth sxcavated and removed and placed in embankments on the Ccol Springs Road, the plaintiff claims 32,330 yards and the defendant 30, 373 yards. On the East Monby Road the plaintiff claims 14,671 yards the defendant 14,520. On the Chipley Ford Read the plaintiff claims 52,507 yards the defendant 54, 256 yards. On the Lewis Ferry Read the plaintiff claims 36,527 yards the defendant 29,226 yards. The evidence has failed tc satisfy me that any mistake made by the defendantrs engineer in estimating the quantity of earth excavated and removed by the plaintiff ¢n either the Cocl Springs Read, the Fast Monbdp Road, and the Chipley Ra Ford Road, and in the absence cf evidence cf such weight I am driven tc the ccneclusitn that the estimate made by the defendant.'s engineer must be upheld, net be~ cause I can see that it is correct but fcr the reascn that I cannet see that it is errcnecus. As to the calculaticn ef the earth excavated and remcved cn the Lewis Yerry Road, I am satisfied that a mistake has been made and that the estimate cf the defendant's engineer AA Comte ot dees net include all the earth, remcved by the plaintiff. At Stewart's Mill, on the line cf this Read, a large fill cr embankment was ccenstructed by the plaintiff in which it is centended an cpening of she size directed by the defendant °S engineer was not left by the plaintiff and it is conceded that the earth in this embankment was not estimated. It is also cconceded that the earth taken from certain large borrow pits on the line of this read did net enter into the calculaticns of the defendant’s engineer. I find that this werk was dene by the plaintiff in ac- ccordance with the ov-ders and directicns cf the assistant éen- gineer, in charge of the werk under Mr. Reach, and that cr- ders were fraqjientl,y given by this assistant engineer tc the plaintiff during the progress cf the work and that the defen- dant's chief engineer, Mr. Reach, was along the line cf the read frequently while the werk was in progress and made nc cbjecticns either to the ccnstructicn cf the fill cr te the use of earth from “he borrew pits and said ncthing abcut it until after the work had been completed and this dispute arose. I am also of the cpinicn that it is at least probable that the slopes of the cuts along thie line of road did not “ “ : z gE ya eee - ei er) enter into the calculations of the defendant's engineer and | that the calcwlations of the defendant's chief engineer were based to some extent on the surveys of the assistant en- | gineer who was an inexperienced beginner and unfamiliar with i guch works Under these circimstances I am cf the cpinicn, that the amcunt of earth excavated and remcvéd and placed in the fills and embankments along the line cf the Lewis Ferry Read amceun- ed tc 32,S76CWIme yn = I find that the cubic yards cf earth excavated, removed and placed in embankments cr fills by the plaintiff under the terms of his ccntract in the constructicn cf the Ceol Springs Read amounted tc (30373.8 yards and that the amcunt due and owing the plaintiff by reason therecf is $6985.97. °65= I find that *he cubic vards cf earth excavated, remcved and placed in embankments cr fills vy the plaintiff under the terms cf his contract in the construction of the Bast Monbdg Read amounted to 14520 yards and that the amcunt due and owing the plaintiff by reason therecf is $3121.80. -9- I find that the cubic yards of earth excavated, remeved and placed in filla and embankments by the plaintiff under the terme of his contract in the constructicn of the Chipley Ford Read amounted to 54236.5 yards and that the amcunt due and owing the plaintiff by reason therecf is $11660.é1. I find that the cubic yards cf earth excavated, remcved, | and placed in fills and embankments by the plaintiff under | the terms cf his contract in the censtructicn of the Lewis Ferry Road amounted to 52876.5 yards and that the amcunt due a ‘and owing she plaintiff by reason therecf is $6904.06, -ll- To Recapitulate, I find that defendant cwes the plaintiff the fcllowing suns:- , Excavaticn and Grading. Cecl Springs Road $ 6985.97. Fast Mend Read 3121.80. Chipley Ford Road 11660. 81. Lewis Ferry Road 6904.06. Extra Werk. Cecl Springs Read $ 233.20. Fast Monbgm Raad 377.260. Chipley Ford Road 596.60. Lewis Ferry Read 802.80. Rebuilding Bmbanknents 323.49. I find that the defendant has paid to the plaintiff on account of said work dcne under said ccntract the sum cf Twenty Seven Thousand Nine Hundred and Nine and 92/100 ($27909.92) Dollars and is entitled to credit for same. ~ 1i>y— I further find that by reason of the plaintiff's failing to reduce the grade sufficiently at one point on the Lewis ‘Ferry Read after his cutfif was remeved and the same was calles | tc his attention he should be charged with the sum of $150.00 and with the further sum of $2968 by reason cf hie breaking a Stump Puller leaned him by the defendant and repaired at a s oie ea a a Sehiaceey “ — erate ee SSB " 4 i} i ; ; v (eost cf $25.68 te the defendant making a tctal cf $175.68. -14< The defendant alsc claims that it is entitled te a credit ef $150.00 on acccunt cf work done in leveling the ' Lewis Ferry Read and remeving and replacing pipe lines thereon imprcperly lecated by the plaintiff,and tc a credit cf $300.00 on the Gool Springs Read and tc a credit of $439.74 on the Chipley Ford Road fer like reascns, by reason cf work dene by defendant which the plaintiff should have donee That the defendant is entitled te a credit on the Lewis Ferry Road is apparent cn the evidence and this has been allowed and in the amcunt claimed by the defendant (see finding 13 supra) The claim as te the $300.00 on the Cocl Spring Read and of $439.74 cn the Chipley Ford Road is not allcwed. There is no evidence cn which the cost cf remcving and replacing the dvain pipes can be ascertained and sep- arated from the cost cf the leveling and it is clear to my mind that it was the duty cf the defendant's engineer to designate the location of the drain pipes and if he failed to de this and the plaintiff, in the exercise cf his best judg- ment located these drain pipes and placed them where he thought they should be lccated, he shculd not now be charged with the cost of renoving and replacing them. The Cool Springs Read was completed about May lat and the Chipley Ford Road in the early Fall and it is not prcbable that the defects in the constructicn gp of the firet named road now claimed to exist should not have been called to the at- téntion of the contractor pricr to the removal cf his cutfit on December let, a pericd of six months. It is still more improbable that these defects existed when the work was | completed, as the plaintiff then requested the defendant 's 4 " “ i} t ‘engineer to ge over the roads and point cut any defects in gonstruct ion or failure tc comply with the terms of the con- tract and upon this being dene returned te the work and re- moved all the objecticns pcinted cut by the engineer which stocd in the way ef their acceptance. Under these circum=- stances it seems more reascnable to conclude that the level- ‘ing required when these reads were tcp sciled by Mr. Lewinter in the late Spring of the next year was due to the winter travel over them, they having been used by the general public all through the winter seascn to their sericus injury. And even asp to the cost of dcing the werk of leveling and removing drain pives in the Spring, that depends entirely’ } upon the information given the engineer by Mr. Lewi'ster whe Was not examined as a witness before me and seems tc be a mere estimate, cne amount being claimed at one time and a different amount at ancther, and the defendant's engineer tes~ tifying that Mr. ewiater did mere cf this work then was necessary to be done. Under these circums*ances I am net satisfied cf the justice of these items claimed as credits by the defendant and therefore do not allow them ase a proper charge against the plaintiff. Conclusicns of Law. Having found that the defendant is indebted tc the plaintiff in the sum cf $31,006.35 and that defendant has paid thereon the sum of $27,909.82 and is entitled tc a further eradit of $175.68, making a tctal credit of $28,085.60, I am of the opinicn and conclude ag matter of law that the defendant is indebted tc the plaintiff in the ‘gum of Two Thousand Nine Hundred and Twenty and 73/100 ($2920.73) Dollars and cost cf acticn, including the fees of Referee’. North Carolina Superior Court. Iredell County J.T. Plott, Plaintiff i -Vs- | EXCEPTIONS T0 REPORT / I OF THE REFEREE BY THE DEFENDANT. Board of Commissioners of Iredell County, Defendant. The defendant; Board of Commissioners of Iredell County, without waiving its right to a trial by a Jury, which right was denied it by the Court when this reference was ordered, and now demands a trial by jury upon the issues, excepts to the Report of the Referee and for exceptions, says: l. That the referee erred in his fourth finding of fact, in that, he finds "that defendant under the terms of the contract was to pay for the removal of rock and any clearing and grubbing along said roads, and any hauling and placing of drain pipes, and that under said contract, plaintiff is entitled to recover therefor $2010.20. Ze That the referee erred in his fifth finding of fact, in that the referee finds that the embankment rebuilt after being washed away, were washed away because the drainage pipes were insufficient to carry the water passing thereunder and not to any defect in the construction of the fills ami embankments, and that the defendant ie liable to the plaintiff therefor in the sum of $523.49. 3. That the referee erred in his finding from the evidence that the number of cubic yards on the Lewis Ferry Road, removed by the plaintiff was 32,876, as said finding is inaccurate and not according to the testimony in the case, either from the plaintiff's contentions or the contentions of the defendant and demands a jury trial upon the issue raised by said findings and defendant's ex- ceptions to the report and pleadings. 4. That the referee erred in the tenth finding of fact, that the cubic yards excavated,removed and placed in the fills and embankments by the plaintiff ,under the terms of his contract on the Lewis Ferry Road amounted to 32,876.56, and that the amount due and owing the plaintiff by reason thereof is $6,904.06, and demands a trial by jury of the issue raised by the defendant's exception and pleadings. 5. That the referee erred in his eleventh finding of fact, in that, he finds that the defendant owes the plaintiff for extra work $233.20, is contrary to the weight of the evidence, and demands a trial by jury of the issue raised by the defendant's exception to the report and the pleadings. That the referee erred also in his eleventh finding ,that the defendant owes the plaintiff for extra work $377.60; and defendant demands a trial by jury of the issue raised by such finding and the pleadings. That the referee erred in finding that the defendant owes the plaintiff for extra work on the Ghipley Ford Road $596.60, which Defendant finding is contrary to the evidence in the case. demands a trial by jury of the issues raised by such finding by referee and on the pleadings. That the referee erred in his eleventh finding, that the defendant . owes the plaintiff on the Lewis Ferry Road $802.80, which is con- trary to the weight of the evideme, touching the work done by the ‘plaintiff on said road. Defendant demands a jury trial on the issue by such findings and on the pleadings. That the referse erred in allowing the plaintiff $323.49 for extra work in rebuilding embankments, wash outs, washed away by the water, the said finding being contrary to the ;eight of the evidence, t= that ,the drainage under said embankments were improperly placed by the plaintiff, in that the height of the emptying end of said pipes, as disclosed by the evidence was some four feet from the base of the embankment, and the water poured through, gradually washing away the dirt constituting the embankment and removing the pipes intended to carry said water; that the plaintiff by his culpable negligent placing of said pipes brought about the damage, was the cause of the embankment being rebuilt, and ought not to recover any thing therefor, Defendant demands ge trial by jury of the issue raised by the findings of the referee and on the pleadings. 6e The referee erred in his fourteenth finding of fact, in that, he disallowed the claim of the defendant for $300.00 on the Cool Springs Road; of $439.74 on the Chipley Ford Road, expended by the defendant in reconstruction of the work, which the plaintiff was to have done properly. Defendant demands a trial by jury of the issue raised by the finding of the referee and on the pleadings, The defendant excepts to the referee's conclusions of law,wherein he finds that the defendant is ihdebted to the plaintiff in the sum of $31006.33, as the same was arrived at by erroneous findings of fact, and not justified by the evidence, and the defendant expresiiq- ly excepts to the referee's conclusions of law that the defendant is indebted to the plaintiff in. the sum of $2920.73, and the cost of the action, and demands a trial by jury of the issue raised by the findings of the referee, as to the amount due and on the pleadings. LC GLuxttE North Carolina Iredell County JeT. Plott, Plaintiff, of Iredeli County. Defendant. Third:- How many cubic yards of earth were removed on the Lewis Perry Road by the plaintiff, and is the finding of the Referee erroneous and not according to the testimony in the case? Fourth:= Tenth Finding of Fact, that the Answer:=- Sixth:= What amount, if any, is defendant entitled to recover of the plaintiff for the construction of the work improperly done on the Cool Springs Road, on the Chipley Ford Road, and was the finding of the Referee erroneous relative thereto? Atiswer:<- Sevenths=- Was the findin f the Referee erroneous as to defendant being indebted to t plaintiff in the sum of $2920.78 ? Answer:-~ [Cie ye / — eo North Carolina In the Superior Court. Iredell County * J. T. Plott vs REPORT OF ARBITRATORS. The Commissioners of Iredell County TO THE SUPERIOR COURT OF IREDELL COUNTY-; We, the undersigned arbitrators, appointed by an order of the Superior Court of Iredell County, do hereby make the following xamprk report: We have carefully examined the evidence produced before the Referee, the exhibits filed in the cause, the report of the Referee and the briefs of counsel. Acting under the authorify of the above mentioned order we make the following award, viz; J. T. Plott is entitled to judgment against the defendant Commissioners for the sum of $2,269.52 and the costs of this action, except the fees of the Referee, stenographer, and Arbitrators, which fees shall be peaif as follows, one half by the plaintiff and one half by the defendant Commissioners, Respectfully submitted, Sf July 28th, ene Arbitrators. ® a ee ee - el ats ee Pp ~ iors 4 LTACVyT