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known to the one for whom he assumed to act, they are evidence of agency.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. ~374.1

| ed plaintiffs in arriving at the estimate of the expected cost of the work, and that he consulted such profile in arriving at the estimates. Held, that this was admissible on the question whether the parties gave a contemporaneous and subsequent practical construction to the contract, 20. MUNICIPAL CORPORATIONS 374 IM- and whether it was upon this understanding that PROVEMENT CONTRACT-ACTION-EVIDENCE the plaintiffs made their estimate. OF AGENCY-ADMISSIBILITY.

The testimony of a manufacturer, who installed the penstock at the dam in question under a contract with plaintiffs, as to discussing the work with the inspector, that he sent specifications of the penstock to the inspector, and delivered the specifications to the inspector in the presence of two of the water and light commissioners, that they all talked over the matter, and he left the specifications there and never saw them again or furnished any others, was admissible on the question of the inspector's agency for the village, and it was immaterial that what took place between the witness and the inspector regarding the specifications was before the contract between plaintiffs and the village was made; it appearing that the inspector was acting for the village in connection with the matter of constructing a dam before the contract was made, and it being inferable that the specifications were received by the commissioners with knowledge of what the inspector had done respecting their procurement.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. 374.]

21. APPEAL AND ERROR 1050 HARMLESS ERROR-RECEPTION OF EVIDENCE-SIMILAR EVIDENCE NOT OBJECTED TO.

Where, in an action on a contract for the construction of a dam involving a question as to the extent of S.'s agency for the village of M., a witness testified without objection that he furnished specifications for a penstock to "Mr. S., representing the village of M. I supposed," an exception to his subsequent testimony that he supposed he furnished them to the village of M. was without force, as this testimony was in substance not unlike the previous testimony.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. 1050.]

22. EVIDENCE 501-OPINION EVIDENCELAYING FOUNDATION.

In an action against a village to recover for alleged extra work under a contract for the construction of a dam, the testimony of one of the village water and light commissioners that, while the work in question was being done, he understood that plaintiffs understood they were doing the work because it was required to be done by the contract, was properly excluded as the opinion of the witness, where no foundation had been laid, by proving the facts upon which the witness arrived at his conclusion as to plaintiffs' understanding.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. 501.] 23. CONTRACTS 175-CONSTRUCTION CONTRACTS-ADMISSIBILITY OF EVIDENCE.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. 175.1

24. CONTRACTS 175-CONSTRUCTION CONTRACTS-ADMISSIBILITY OF EVIDENCE.

It appearing that such witness was present when defendant's engineer made soundings of the river bottom through the ice, he was properly permitted to testify, in answer to a question as to whether in the investigations made and the soundings witnessed by him he reached a conclusion as to the character of the river bottom, that he supposed it was rock bottom at every place where the soundings were made; the result of his investigations having been communicated to plaintiffs and entered into their consideration in making their bid.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §8 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. 175.]

25. WITNESSES 286-REDIRECT EXAMINATION-NEW MATTER.

It was within the discretion of the court to receive competent evidence on redirect examination, although out of the regular order of the

case.

286.1

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig. 26. CONTRACTS 175 - CONSTRUCTION CONTRACTS-ADMISSIBILITY OF EVIDENCE.

In an action for alleged extra work under a contract for the construction of a dam which

provided that extra work would be paid for at actual cost plus 10 per cent., evidence as to the rental value or value of the use of machinery such as that employed by plaintiffs was properly admitted over the objection that there was no evidence that plaintiffs used any other or different machinery than they had there for the work they expected to do, as reasonable compensation for the use of the machinery was a matter to be considered in determining the actual cost of the extra work.

[Ed. Note. For other cases, see Contracts, Cent. Dig. 88 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. 175.]

27. CONTRACTS 175 CONSTRUCTION CONTRACTS-ADMISSIBILITY OF EVIDENCE.

In an action against a village on a contract for the construction of a dam to recover vation and filling with concrete of a pocket or for alleged extra work, consisting of the excafissure containing a substance unsuitable for a foundation for a dam, it was plaintiffs' contention that it was understood by both parties that the bed of the river was rock bottom, that the actual condition could not have been discovered in advance without experimenting at a disproportionate expense, and that the plans indicated that a line indicating the river bottom was to be the bottom line of the construction. A witness testified that during the work he and others went out into the stream and made soundings to discover a place suitable for a cofferdam, and that they found the bottom to be what they called rock bottom. Held, that this was admis sible as bearing on the possibility of ascertain ing the actual condition of the river bottom in advance without actual experiments.

In an action on a contract for the construction of a dam providing that the contract price covered the total expense of securing a proper foundation and building the work to lines and levels, and in the manner called for by the specifications, there was a dispute as to whether a line representing the river bottom appearing on a "profile across river" in the plans was the bottom line of the construction, and whether excavation below such line, made necessary by the discovery of a pocket or fissure containing matter unsuitable for a foundation, was covered by the contract or was extra work. A witness testified over objection that he assist-1803, 1810; Dec. Dig.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 766, 978, 1010, 1067-1069, 1786, 175.]

28. CONTRACTS 175- CONSTRUCTION CONTRACTS-ADMISSIBILITY OF EVIDENCE. Evidence that plaintiffs looked the work over, that in making their bid they took into consideration what they had observed, and that, from their observation of the place and the information they then obtained, they regarded the bottom of the river as rock, was properly admitted on the questions of what steps plaintiffs took to ascertain the character of the river bottom and how the plans were understood by the parties when the contract was executed.

[Ed. Note. For other cases, see Contracts, Cent. Dig. 88 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. 175.]

29. CONTRACTS 175-CONSTRUCTION CONTRACTS-ADMISSIBILITY OF EVIDENCE.

One of the plaintiffs, in testifying as to what he did before bidding, testified that at a meeting with defendant's water and light commissioners he was shown the plans and certain notes regarding the dam, and, over the objection that the notes were the best evidence as to what they were, he further testified that he understood the notes to be the elevations and soundings taken by defendant's engineer at the site of the dam. On cross-examination, he stated that he understood they were notes made by the engineer when soundings of the river were made, that one of the commissioners showed him the plans, that he then understood elevations on the plans were the elevations found by the engineer when the soundings were made, and were the elevations of the river bottom, and that the commissioners told him the bottom of the river along the lines shown on the plans was rock bottom or solid rock. Held, that the evidence objected to was admissible to show that plaintiff, in addition to a view of the premises and an examination of the specifications, also had, as a guide to aid him in determining what he might do, what was represented to him as being the notes of the engineer who made the plans, and if there was otherwise any doubt its admissibility was made clear by the testimony on cross-examination.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. 175.]

30. CONTRACTS 175 - CONSTRUCTION CON

TRACTS-ADMISSIBILITY OF EVIDENCE.

In such action, where the exact location of the line of the proposed dam established by a survey was not shown by the plans nor by the specifications, evidence that, when one of the plaintiffs was making an examination preliminary to bidding, the line was pointed out to him by a man who worked under the surveyor in making the survey, and that plaintiffs subsequently acted on such information, was admissible; there being no claim that the line so pointed out was not the line of the survey.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. 175.]

31. TRIAL 84-RECEPTION OF EVIDENCEOBJECTIONS AND EXCEPTIONS.

An objection to evidence stating no ground raised only the question whether the evidence was material or relevant in any state of the

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and that excavation below such line was therefore not covered by the contract price, evidence that, at a meeting with the village water and light commissioners before plaintiffs' bid was made, there was a general discussion concerning the character of the river bottom, and that it was then said to be rock, and that such line was referred to as being the base line, or line above which the foundation of the dam was to be built, was admissible, since, while oral evidence is inadmissible to enlarge, vary, or contradict the terms of a valid written contract, a contract is to be read in the light of the surerence to its object, and the parol evidence rule rounding circumstances and considered with refis not infringed by admitting evidence to explain a latent ambiguity.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. 461.] 33. MUNICIPAL CORPORATIONS 374-CONSTRUCTION CONTRACTS-ACTION BY CONTRACTOR-ADMISSIBILITY OF EVIDENCE.

In such action, evidence that during the progress of the work the village water and light commissioners were present at different times, and that on one occasion two of the commissioners, being less than a majority, in company with the inspector in charge of the work for the village, ordered certain changes in the work, was admissible to show the commissioners' knowledge of the conditions making the extra work necessary, as knowledge by, or notice to. an agent while acting for his principal, of facts affecting the transaction, is constructive notice to the principal.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. 374.]

34. MUNICIPAL CORPORATIONS 374-CONSTRUCTION CONTRACT-ACTIONS-AGENCYSUFFICIENCY OF EVIDENCE.

show that the inspector appointed by the village In such action, evidence held sufficient to water and light commissioners to have charge of the work was the authorized agent of the commissioners in whatever he did by way of ordering extra work and materials, or in connection therewith.

Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. [Ed. Note.-For other cases, see Municipal 374.]

35. EVIDENCE

GESTÆ.

121-DECLARATIONS - RES

In such action, declarations of the village water and light commissioners while on the work for the purpose of giving orders respecting changes in the work were admissible as res gestæ.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. 121.]

36. CONTRACTS 175

CONSTRUCTION OF CONTRACTS-ADMISSIBILITY OF EVIDENCE. In an action for extra work under a contract for the construction of a dam consisting of excavating a pocket or fissure in the river bottom and filling it with concrete, evidence that the condition of the river bottom could not have been determined without actual experiments before the work of excavation commenced, and that plaintiffs did not in fact know where they would find bedrock until they struck it, was admissible on the question of whether there was a waiver of the requirement of the contract that extra work should be covered by an order in writing.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. 175.]

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-CITY ENGINEER.

the question whether the parties gave a contemporaneous construction to the contract.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. 175.]

42. EVIDENCE 536- OPINION EVIDENCECOMPETENCY OF EXPERTS.

In an action on a contract for the construction of a dam, where there was a dispute as to whether it was understood that a line shown on a profile of the river was the bottom line of the construction, an expert engineer, called to testicharacter of the river bottom in advance, was fy regarding the possibility of determining the asked whether he knew anything about the wash-boring method of determining the character of river bottoms, and answered that he had read of it but had never used it. Held, that as it did not even appear whether he read of it in some scientific book or in some publication, without the court properly ruled that he was not comany pretensions to knowledge of such matters, petent to express an opinion as to the feasibility of using such method in a locality filled with a particular kind of material.

A contract with a village for the construction of a dam provided that monthly the village would make an estimate of the proportionate value of the work done and the amount thereof, less 10 per cent., due, and that upon satisfactory completion of the work a final estimate of the total amount of the contract and all extra work should be made. In an action involving a dispute as to whether the excavation of a pocket in the river bottom was extra work, one of the plaintiffs testified that he made a request of defendant's engineer who made the estimate respecting such work, and that the engineer promised to consider it. Over objection that the engineer was not the agent of the village, he further testified that the engineer sub-536.] sequently stated he had considered it. It ap- 43. EVIDENCE peared that the engineer did not include such work in the monthly estimate. Held, that his declaration that he had considered such work was admissible as a declaration made in connection with an act done in the course of his agency and tending to characterize his omission of the work from the monthly estimate, on the question of whether the work was extra work, and also to show notice to the engineer that plaintiffs were claiming pay for it as extra work.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 937-944; Dec. Dig. 245.] 39. MUNICIPAL CORPORATIONS

-NOTICE.

360-AGENTS

Notice to such engineer that the contrac

tors were claiming pay for such work as extra

work was in law notice to the village.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 892, 8922; Dec. Dig. 360.]

40. WITNESSES 248- EXAMINATION — RE

SPONSIVENESS OF ANSWERS.

In an action on a contract for the construc

tion of a dam involving a dispute as to whether
a line shown on a profile of the river was under
stood to be solid rock and the bottom line of the
construction, one of the plaintiffs was asked on
cross-examination why, if a cross-section of the
dam appearing on the plans required that he go
to solid rock, they did not have to go to solid
rock along the whole length of the spillway. He
answered that nothing on that page of the
plans made any difference, that the whole plan
told him to go to rock, and that the profile line
showed they would find rock at the levels mark-
ed on it. Held, that the answer was responsive.
[Ed. Note. For other cases, see Witnesses,
Cent. Dig. §§ 861-863; Dec. Dig. 248.]
41. CONTRACTS 175-CONSTRUCTION CON-
TRACTS-ADMISSIBILITY OF EVIDENCE.

In an action on a contract for the construc

tion of a dam which required the work to be built to lines and levels as called for in the plans and specifications, involving a dispute as to whether excavation and filling below a line shown on a profile of the river was extra work, the testimony of one of the plaintiffs, as to the points or lines between which he estimated the yardage of the work before bidding, was admissible as bearing on the question of plaintiffs' understanding of the plans and specifications, and

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2343, 2344, 2347; Dec. Dig.

518-OPINION EVIDENCESUBJECTS OF EXPERT TESTIMONY.

A witness was asked what he would think of a requirement that the dam should be built along such profile line assuming that it was the profile of the surface of the soil and of the bottom of the river and, if permitted to answer, would have characterized such requirement as very foolish. Held, that the question was properly excluded, as the characterization of such a requirement on assumed facts was not a matter for expert testimony.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2326; Dec. Dig. 518.] 44. EVIDENCE 558-EXPERTS - SCOPE OF CROSS-EXAMINATION.

that, if the profile line was intended to be a An expert engineer testified for defendant grade line to which the foundation of the dam should be placed, anything going below that line would be shown by a dotted line, and that, if he had been drawing the plans on the theory on which defendant claimed they were drawn, he would have drawn them as the plans in question were drawn. On cross-examination he was ask

ed whether, if he wanted to provide for the unexpected, he would put in the plans and specifications something about what might be discovered, and indicate something as to bids on that, the cross-examining attorney that it was his and admitted that a few nights before he told custom to provide in the plans and specifications that the bidder should name his price for anything below the line in case it should be found

necessary.

Held, proper cross-examination. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2377, 2379; Dec. Dig. 558.] 45. APPEAL AND ERROR 690 RECORD

MATTERS PRESENTED FOR REVIEW. The exclusion of an exhibit offered in connection with a witness' testimony will not be considered, where the exhibit is not furnished the Supreme Court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. 46. WITNESSES

AMINATION.

690.]

268-SCOPE OF CROSS-EX

In an action for alleged extra work under a contract with a village for the construction of a dam, one of the water and light commissioners testified that plaintiffs' bid, though the lowest, was considered too high, and an effort was

made to reduce the cost of the dam without im- | lieved at the time the work was being done that pairing its efficiency, and for that purpose & it was within the requirements of the contract, meeting was had with one of the plaintiffs. On and a requested instruction that if, while the cross-examination he was asked whether he had work was being done, a majority of the commisan opinion concerning the expense to which the sioners honestly believed that the contract and commissioners were going to put the village, the plans and specifications thereunder requirand what the amount was that he thought prop-ed the contractors to do such work, there was er. Held, that this was within the scope of no waiver of the requirement that extra work cross-examination which the court in its discre- should be covered by a written order, was proption could allow. erly ignored, especially where the court did charge that if the work was extra work, and if, after it was completed, the dam was delivered to the village, who accepted it knowing that it was extra work, or if it ought to have known it, without any written order from the village or and knew that the work had been performed its representatives, the contractors might resee Contracts,

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. 268.1 47. WITNESSES 268-SCOPE OF CROSS-EXAMINATION.

One of the commissioners testified that he never understood that B. had any connection with the preliminary survey and exploration for the dam except at his own request, and that he never sent him to Burlington to see an engineer. Held, that it was permissible to ask him on cross-examination whether it was his understanding that B. did go to Burlington, and whether he knew through a third person that B. went to Burlington.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. 268.1 48. WITNESSES 286-RECEPTION OF EVI

cover.

[Ed. Note.-For other cases, Cent. Dig. §§ 1071-1094; Dec. Dig. 232.] 53. TRIAL 253-INSTRUCTIONS-CONFORMITY TO EVIDENCE.

In an action for alleged extra work under a contract for the construction of a dam, a requested instruction, hypothesizing plaintiffs' reliance on the conduct and silence of defendant's ment of the contract that extra work should inspector as constituting a waiver of a requireex-fused, where plaintiffs did not rely solely upon be covered by a written order, was properly rethe conduct and silence of the inspector, as constituting a waiver; there being other evidence on the question, as it was plaintiffs' right to have the jury determine the question of waiver upon the whole evidence bearing thereon. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. 253.] 54. TRIAL

DENCE-ORDER of Proof. It was of no consequence that redirect amination of a witness was not warranted by the cross-examination, where the court recognized this fact, but in its discretion admitted the evidence out of the ordinary course.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig. 286.] 49. TRIAL 244-INSTRUCTIONS—SINGLING OUT TESTIMONY.

It was not necessary for the judge to single out and make prominent a feature of the evidence which was not determinative of any issue

in the case.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. 244.] 50. CONTRACTS 353 - ACTION - INSTRUC

TIONS.

Where a contract for the construction of a dam provided that the work should be performed "according to the plans and drawing," an instruction, in an action on such contract, that the contract and the plans and specifications thereunder could not be construed in a certain way, was properly refused; the requirement not being that the work should be done under the terms and conditions of the specifications.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 93, 1829-1844; Dec. Dig. 353.1 51. CONTRACTS 170-EVIDENCE- PRACTICAL CONSTRUCTION.

251-INSTRUCTIONS-CONFORMI

TY TO EVIDENCE.

structions including the element of a misunderIn an action on a contract, requested instanding of the requirements of the written contract, and the plans and specifications thereunder by plaintiffs, were properly refused, where there was no claim by plaintiffs that there was any misunderstanding, but there was a disagreement as to the proper interpretation of the contract in certain respects in which it was ambiguous, as the refusal of requests embodying general propositions of law, however correct in form and substance, not involved in the case on trial, is not error.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. 251.]

55. CONTRACTS 353-CONSTRUCTION CON

TRACTS-ACTIONS-INSTRUCTIONS.

In an action on a contract for the construction of a dam requiring that the work should be built to lines and levels and in the manner call

dispute as to whether it was understood and intended that a line shown on a profile of the river represented solid rock and was to be the bottom line of the construction, or whether it was understood that the contractor should go to solid rock wherever found, instruction held to have submitted this question to the jury in a manner fully protecting the rights of both par ties.

In an action on a contract involving a dis-ed for by the specifications, in which there was pute as to its meaning, it was permissible to show how the parties understood the contract and the practical construction placed upon it by them, and instructions that no act or omission of the plaintiffs or an employé of plaintiffs, after the execution of the contract, could be evidence in favor of plaintiffs touching the force, effect, or construction of the contract, or as to their understanding of its force, effect, and interpretation, were properly refused.

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[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 93, 1829-1844; Dec. Dig. 353.]

52. CONTRACTS 232 - CONSTRUCTION CON- 56. CONTRACTS 353-CONSTRUCTION CONTRACTS-LIABILITY FOR EXTRA Work.

Where there was a general waiver or an intentional relinquishment of a provision of a contract with a village for the construction of a dam that extra work should be covered by a written order, and work ordered and performed was in fact not within written contract, the contractors were entitled to pay therefor, though the village water and light commissioners be

TRACTS-ACTIONS-INSTRUCTIONS.

In an action on a contract for the construction of a dam, the court charged that, in order to find that defendant had accepted the work as fully performed, it must appear that defendant had taken possession and use of the dam with the intention of relinquishing all claim upon plaintiffs for failure to perform in full. Defendant excepted to the failure of the court to

BAT

charge, in connection with its instruction about acceptance, that the mere use and beneficial enjoyment of the dam by defendant could not of itself constitute an acceptance. Held, that in effect the instruction given told the jury all and more than the exception insisted they should have been told.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 93, 1829-1844; Dec. Dig. 353.]

Munson, C. J., and Taylor, J., dissenting.

Exceptions from Lamoille County Court; Willard W. Miles, Judge.

Assumpsit by Douglass & Varnum against the Village of Morrisville. Verdict and judgment for plaintiffs, and defendant brings exceptions. Affirmed.

The following are the diagrams referred to in the opinion:

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