This suit was instituted in the circuit court of Greene county, in which plaintiff' claimed there was due him from defendant the sum of $1,284. The suit is founded on a written contract entered into by plaintiff’, of the first part, and E. S. Jones, J. B. Townsend and N. Ingram, a committee on behalf of defendant, of the second part, for grading and macadamizing Boonville street and grading a city lot, containing among others not necessary to notice the following stipulations: “ The macadam on Boonville street shall be twenty-four feet wide, twelve feet on either side of the centre line, and shall be eight inches thick at
The seven instructions asked for by plaintiff and refused by the court, it is unnecessary to notice, further than to say that there was no evidence on which to base the first. The second and third are subject to the same objection and theffurther objection, that in neither of them was the quantity of macadam to be used on said street, limited to the amount specified in the written contract. The fourth, fifth, sixth and seventh instructions were based on the theory that under the'contract the macadam was to be measured before' it was spread. If even this construction of the contract were correct, it does not authorize the measurement of more than was necessary to cover Boonville street to the required depth as specified in the contract. The evident intent of the contract was to have Boonville street covered with macadam to the depth of eight inches in the centre, with a gradual diminution of its depth
Nor do we perceive any error in the action of the court in giving the instructions asked for by defendant to the effect, that plaintiff’ could not recover for more macadam than was necessary to cover Boonville street for the length macadamized to the width of twenty-four feet, and the average depth of six inches; and to the further effect, that to ascertain the amount of macadam spread on said street, the jury would multiply the length, breadth and average depth of the same in feet and divide by 27. We think that the rule thus laid down was an accurate one, of which the plaintiff could not complain, especially when the evidence tended to show that the macadam, when emptied from the boxes in which it was brought or hauled, increased in bulk about one-fourth.
Judgment affirmed,
Aerirmed.