227 F. 966 | 7th Cir. | 1915
(after stating the facts as above). The main contentions here are: First, were appellants, under the facts as
The contract warrants the limestone to contain 90 per cent, of carbonate of lime. This degree of purity is essential for successful operation of a Portland cement manufacturing plant. The evidence shows that a considerable part of the main bed of limestone averaged much less than 90 per cent. — some of it very much lower. It also shows that there was in places dolomite above the limestone 30 feet in thickness, and that the overburden exceeds 8 per cent, of the total height of the stone deposit above the level of the bottom of the present quarry. Appellee suggests that the dolomite is above and not in the limestone. The debased quality of the limestone indicates that the magnesia stone is in as well as over the limestone in many places. His contention that the contract does not refer to magnesia stone upon the limestone bed is not a reasonable construction of the contract. Even were it so, the burden of the material lying above the limestone far
For the reasons stated, appellee is not entitled to any relief upon his counterclaim. The decree of the District Court in No. 2216 is reversed, with direction to enter a decree for appellants, and the decree in No. 2260 is affirmed.
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