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Lyon and others v. McCadden.

LYON, BUCK AND WOLF US. WILLIAM MCCADDEN.

Sworn copies of estimates from the office of the Resident Engineer, are competent evidence in an action against à contractor, by a sub-contractor, to recover for work done on the public works, for the purpose of ascertaining the value of the work done.

THIS is a WRIT OF ERROR to the Supreme Court of MuskINGUM County, made returnable here.

The original action was assumpsit, for work and labor, &c. The declaration contained only the common counts, to which was interposed the plea of the general issue, with notice of setoff. At the October term of the Supreme Court, 1844, in Muskingum county, the case was submitted to a jury, who found a verdict for plaintiff below of $3,137.97, upon which the Court rendered judgment.

During the progress of the trial the following bill of exceptions was taken:

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"Be it remembered that, upon the trial of this cause, the plaintiff gave in evidence a written agreement, signed by the 'plaintiff and defendants, and which was in the plaintiff's handwriting, and was as follows, to wit: McCadden agrees to perform all the work on Lyon's (Taylorsville) section of public works, lying above the locks, and also the excavation of the lock-pits, above low water, at his prices; and agrees to 'give Lyon fifteen hundred dollars, as premium, on the same. The payments to be made as the work progresses. Taylors'ville, Ohio, Nov. 21, 1836.

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"WILLIAM MCCADDEN,
"LYON, BUCK & WOLF.'

The plaintiff then gave in evidence the contract entered into, in October, 1836, between the defendants and the State of Ohio, referred to in the agreement between plaintiff and defendants, which contained, among other things, the following:

IN BANK.

Dec. Term,

1846.

Lyon and others v. McCadden.

Dec. Term,

1846.

IN BANK. The contract prices were stipulated for all work enumerated; and it provided that the Board of Public Works should appoint some suitable engineer to inspect the works, with power to direct the mode and manner of doing the work; to direct changes in the work, and determine the compensation to be paid the defendants on account of a change, and to require work to be done not stipulated for in the contract, and fix the price to be paid therefor; and, to prevent all disputes, such engineer should determine when the work was completed according to the contract, and certify the same in writing, under his hand, to the Board of Publie Works, together with his estimate of the amount of the various kinds of work therein specified, which shall have been done under the contract, which estimate shall be final between the parties: And thereupon the Board covenanted and agreed, within ten days after notice of such certificates and estimates, to pay the defendants the amount which should be due them, at the prices stipulated. The plaintiff then, for the purpose of showing the amount of work which had been done by him upon said section five, gave in evidence sworn copies of what he claimed to be the estimates of the engineers of the State having superintendence of the work. These sworn copies were objected to by the defendants' counsel, but admitted by the Court. The evidence rejecting them was as follows: The assistant engineers, stationed at the different sections on the line of the Muskingum river improvement, made estimates of work done, from time to time, as they were directed, and transmitted these estimates, on detached pieces of paper, to the resident engineer, in McConnelsville. These estimates consisted of quantities and kinds of work, and the prices were annexed and carried out by the resident engineer after they reached his office. The resident engineer also examined these estimates, and corrected them when he deemed them erroneous, sometimes increasing and sometimes reducing their estimated amount of work. The resident engineer then caused these estimates, thus corrected, to be registered in a book kept for that purpose. The original

Lyon and others v. McCadden.

papers, transmitted by the assistant engineers to the office at IN BANK. McConnelsville, were sometimes filed, and sometimes thrown

aside, as of no further use. There are no regular and complete files of them in the office. The estimates entered in the register, were entered, sometimes in the handwriting of Messrs. Curtis and McAboy, the resident engineers at different periods, and sometimes in the handwriting of Mr. Straughn, and other persons employed in the office; and all the copies offered in evidence were copied from the register above described, excepting one called the final estimate; and with respect to that, the evidence was, that the witness asked Mr. McAboy, the resident engineer then in charge of the Muskingum Improvement, to furnish him with final estimates of the work done by defendants, who had contracts for other sections beside section five, and that, from a file of papers marked "Final Estimates," the said McAboy handed the witness certain papers, from one of which, purporting to be a final estimate of section five, a copy was made by witness, and given in evidence as above stated. This last mentioned estimate showed work done by plaintiff to the amount of seventy dollars more than that which preceded it, which was copied from the book, and increased the verdict of the jury in that sum. Neither the book nor paper were signed or certified, nor did the witness know in what handwriting they were.

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In the course of the further progress of the cause, proved by the defendants that the plaintiff, during the progress of the work, had said, that he did not expect to receive his pay faster than the defendants received it from the State; once, that in July, 1840, just before the completion of plaintiff's work, the plaintiff admitted that, according to the scale of compensation prescribed by the State, (reserving per centum,) he had been paid more than was due to him, and that plaintiff said he had stopped or suspended his money in the hands of the acting member of the Board of Public Works; and the defendants further gave, in evidence, a letter of Leander Ransom, Esq., the said acting member of the board, as follows:

Dec. Term 1846.

Lyon and others v.. McCadden.

IN BANK. C. WOLF, Esq. "COLUMBUS, May 14, 1841. Dec. Term, "Dear Sir: Yours of the 11th instant, addressed to Mr. Medbury, was 1846. handed me this morning. At the time payments were made on the Muskingum, a few days since, Mr. McCadden presented a statement, the purport of which was that you owed him some six or seven thousand dollars, for work done under your contract, as a sub-contractor, and that he found he should not be paid for a long time, at any rate, were the money paid to you. Not knowing any thing about the matter, further than the statement above referred to, I told Mr. Buck, who was present, that we must defer making a payment on your section until some arrangement should be made with McCadden, or a different aspect presented to this affair. Our estimate can be made on your work at any time, when some person is present who is authorized to receive it and receipt for it, provided the McCadden difficulty is arranged, if any really exists. As no estimate has been made, the money remains in the State Treasury.

"Very respectfully,

"LEANDER RANSOM."

No evidence was given, on either side, of any payment by the State to the defendants, after the date of that letter, before the commencement of the suit. Defendants asked the Court to instruct the jury that the plaintiff could not recover in this action, if the jury believed the evidence as to the plaintiff's saying that he did not expect to be paid faster than the defendants received it from the State, unless there was proof to satisfy the jury that money had been received by the defendants, on account of plaintiff's work, from the State, before suit brought ; which instructions the Court refused to give. To which opinion of the Court the defendants also except; and they pray that this, their bill of exceptions to said several opinions of the Court, may be signed and sealed and made part of the record in said cause; which is accordingly done.

The errors assigned are, that the Court erred in admitting copies of the estimates to go in evidence to the jury, and in refusing the instructions to the jury as requested by defendant's counsel.

Isaac Parrish, for Plaintiffs in Error.

R. Stilivell, for Defendant in Error.

Lyon and others v. McCadden.

Dec. Term,

1846.

READ, J. We find no error in the ruling of the Supreme IN BANK. Court upon the circuit. In establishing the amount of plaintiffs' claim, resort was had to the estimates of the engineers, as evidenced by sworn copies. It is made the duty of resident engineers, by the requisition of the Board of Public Works, and is necessary to the correct discharge of their official duties, to keep records of their proceedings. Estimates, mesne and final, those made during the progress of the work and after its completion, should be preserved. That the resident engineers, upon the several sections of the public works, have kept such record, is a fact well known. It is equally well known, that all the hands, contractors, and persons employed upon any particular work, look to the records of the resident engineer for the requisite estimates, mesne and final, to enable them to ascertain their rights and make settlements. This is the universal practice and understanding. It never was supposed by any body that a person upon a particular section must go to Columbus, to the office of the Board of Public Works, to ascertain facts which could be procured from the office of the resident engineer. The very object of the office of resident engineer is to make estimates and furnish evidence of it; and precisely what the resident office furnishes, constitutes the records of the office of the Board of Public Works. Ingenuity is quite active, oftentimes, in suggesting reasons why money should not be paid to hands and contractors for labor performed; and much distress is sometimes manifested lest the Court should compel a man to pay his honest debts. But in this case we can discover no violation of principle in the admission of evidence, as it was nothing more than the admission of sworn copies of a record from a public office. And, beyond the estimates therein made and contained, were those referred to in the contracts, and by the understanding of all parties, as the evidence upon which to base payments and make final settlements, and determine what was due between the parties. There is nothing in the objection that these were copies of copies; they were the copies of the record. There is no doubt the record was made up of facts contained on paper, brought there for

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