I. The demurrer was properly overruled. It is directed to merely a part of a sentence. It is not competent to
III. The contract stipulates as follows: “It is further understood that the party of the second part (plaintiffs) shall
Appellant claims that, under the contract this 38 cents pays for dressing the stone and setting them in the wall, and that, evidence as to the number of perches in the entire wall, was incompetent. We do not think this is the fair and reasonable construction of the contract. The evidence very clearly shows that the dressing of stones and the laying of them in walls, are usually contracted for separately. There are several modes of dressing stones, differing very materially in cost. If this 38 cents per superficial foot was intended as the compensation for dressing and laying in the wall, the contract is very imperfect and indefinite, for plaintiffs would receive no more compensation for laying these dressed stones, if they extended into
We have no doubt that the true construction of the contract is that it provides pay by the perch for all the stone laid in the wall, and in addition to this 88 cents per superficial foot for dressed ashler appearing upon the contour of the tower. This would prevent the plaintiffs from recovering for any dressing which did not, after the erection of the wall, appear upon the surface.
IY. It is objected that the testimony of all the witnesses of plaintiffs, except Mullany, as to the custom of measuring masonry, was improperly admitted, because they were not shown competent to testify to the mode of measurement. This objection is without merit. The witnesses were all practical mechanics, of many years’ experience, and they show themselves fully acquainted with the custom as to measuring.
Y. It is claimed that the testimony as to the work on rock, not put in the tower, should have been excluded because not
YI. No specific objection is urged in the argument to the instructions given, nor to the refusal of those asked. The charge of the court seems quite fair, and is, so far as we see, unobjectionable. The evidence fully sustains the verdict.
AFFIRMED.