271 F. 678 | 8th Cir. | 1921
This is an action brought by the city of Pittsburg, Kan., against the Williams Construction Company and the Chicago Bonding & Insurance Company to recover damages for the failure on the part of the Construction Company to perform a paving contract. A jury was duly waived and the case tried to the court, which after hearing the evidence rendered a judgment against the Construe-
Specification of Errors.
The following is the assignment of errors relied on and intended to be urged:
(1) The judgment of the court herein, in favor of the plaintiff and against this plaintiff in error, is contrary to the law, is contrary to the evidence and against the weight of the evidence, and is unsupported by any evidence.
(2) The court erred in not setting aside its judgment for the reason that there was no evidence upon which to sustain its judgment.
(3) The court erred in overruling the motion of the defendant, Chicago Bonding & Insurance Company, to set aside the judgment and grant a new trial.
(4) The court erred in admitting evidence on behalf of the plaintiff and against the defendant (this plaintiff1 in error), over its objections and exceptions, tending to prove that the plans and specifications for National pavement in question were not the plaintiff’ city’s, were a patented pavement, and that such plans and specifications came through the defendant Williams Construction Company, and that the Williams Construction Company and the patentee were promoting the pavement; such evidence being as follows:
‘‘By Mr. Pingry: Q. Do you know where these plans and specifications and formula for this National pavement came from, or who prepared it? * * >5
“By Mr. Stinson: The defendant objects to that question for the reason that the pleadings, the admissions of plaintiff contained in the exhibits already offered, show conclusively that the plans and specifications were those of the city. * * * That any evidence as to who might have prepared them, in conflict with the recitals in the contract, resolution and ordinance, is not binding on the-defendant Bonding company.”
Objection overruled—exception allowed.
“A. The question cannot be answered by yes or no. The plans and specifications came to me through the agent of the patentee and the Williams Construction Company, who were promoting this pavement together at the time, and the specifications were the result of experimentation and development on the part of the patentee, and I think he was assisted by a consulting engineer.”
No error appearing in the record, the judgment below is affirmed.