Dеfendants had taken the contract to construct a portion of a state rural highway for the county of Aitkin, and sublet a part to plaintiff. When the work was completed a dispute arose as to the amount due, and this action resulted. The answer .dеnied that the amount of work was as claimed by plaintiff, alleged overpayment, and set up a counterclaim asking for а reformation of the contract. By consent 7 issues were submitted to a jury and answered. There has been no final disposition оf the action, but, after the special verdict, a case was settled and a motion made in the alternative for judgment or a new trial. The motion was denied and this appeal taken.
It is plain that the motion for judgment cannot be considered. As to some of the issues answered by the special verdict, the verdict is palpably correct, and, moreover, a final оrder for judgment cannot be entered, for there are yet issues to be heard and determined by the court.
Several assignments of error challenge the sufficiency of the evidence to sustain the several findings of the jury. We have examined the recоrd with care, and find nothing tangible upon which to predicate defendants’ contention.
No doubt, the estimate of the engineеr in charge of the work determined the quantity of each item for which plaintiff could ask payment of his contract price. But the difficulty here is, there is no reliable and definite testimony either from the engineer O’Hara or Hanson, his assistant, from which the work сould be computed. The final estimate, Exhibit T, is for the whole distance embraced in defendants’ contract and does not show the amount done upon the part sublet to plaintiff. In fact the jury had
Certain errors are assigned upon the rulings of the court on the reception and rеjection of evidence. The engineer’s monthly estimates insofar as the same related to work covered by plaintiffs contract were clearly admissible. True, they are, perhaps, not supposd to be as accurate as the final estimate, but have some value, being made by the engineer in charge of the work for the purpose of furnishing the basis for making pаrtial payments to the contractor. It was immaterial whether plaintiff knew that the county commissioners were to accept the road. The provisions of law applicable to the construction of this sort of road he was bound to know. Whether or not plaintiff should maintain the road until accepted, depended on his contract and the statute under which the work was done, and no error was made in excluding plaintiff’s opinion on the matter. No prejudicial error occurred in not рermitting the engineer O’Hara to state, as of his own knowledge, whether plaintiff was given credit for the number of cubic yards of “borrowed” earth which he actualy excavated, for O’Hara had not been out upon the job except casually. An assistant had charge of it in the field, and assistants made the final estimates. Hr. O’Hara could not speak from personal knowledge.
The error,-if there be any, in the charge of the court, is not of a serious character. In speaking of the monthly estimates issued by the engineer the court read, as applicable thereto, the provision contained in section 5541, 6. S. 1913, instead of thе one found in section 17 of chapter 230, p. 321, Laws 1905. Both authorize preliminary estimates during the progress of the work, and, on work of this sort, the issuance of certificates for the payment of not to exceed 75 per cent thereof. So far as the two sections pertain to -the issue before the jury there is no substantial difference.
No other question requires discussion. Hpon the record made defendants are not in a position to complain of the special verdict upon the second and third causes of action.
Order affirmed.