46 Kan. 145 | Kan. | 1891
Opinion by
In 1883, the defendant in error contracted in writing with the plaintiff corporation to build water-works in the city of Parsons, Kas., and was to receive as compensation therefor $100,000 worth of paid-up-capital stock of said company, par value, and $50,000 worth, par value, of the mortgage bonds of said company, which stock and bonds were to be all the stock and all the bonds to be issued by said corporation. During the construction of said works the defendant in error did some extra work for the
The last error assigned is founded upon an alleged erroneous instruction given by the court to the jury. We do not think it possible, under the circumstances of this case, for the jury to have been misled by the technical error on the part of the court in using the word “defendant” instead of the
The plaintiff claims that the court, in its instruction referring to the amount of mains required by the ordinance to be laid in the city, left out the words “ in said city,” so that it did not appear from the instruction that the six miles of mains required by the ordinance to be laid must be laid in the city. While the court left out the words “in the city,” yet the court used the following language: “And if you believe from the evidence that the defendant [plaintiff] laid six miles of pipe at places designated,” etc. With the ordinance, which required the six miles of pipe to be laid in the city, in evidence, this language of the court was equivalent to saying: “If you find six miles of pipe was laid in the city, then, so far as this feature of the contract is concerned, you would be justified in finding the plaintiff had complied with the same.” At any rate we do not think there is any material error in the instruction complained of.
It is recommended that the case be reversed as to the .second cause of action, and affirmed as to the $400 and interest on same.
By the Court: It is so ordered.