Snell v. Cottingham

Citations

• 72 Ill. 161

Syllabus

<p>1. Pbactice—when right to assign error for sustaining a demurrer is ioaived. When a demurrer is sustained to a special plea, and the defendant afterwards asks and obtains leave of the court to file a notice, under the statute, of special defenses, which notice, in substance, contains the same matter and things as were contained in the plea, it seems this would be a waiver of the right to assign as error the decision of the court sustaining the demurrer.</p> <p>2. Contract—construction—in respect to a contract to construct a railroad. A contract for grading and laying the track of a railroad, provided that the track was to be laid with a good even surface; that the contractor should fill in after the track was laid with earth from the nearest point on the side of the track, and to do all necessary grading to finish the road, to be measured in the earth work aforesaid, and that the contractor should receive twenty cents per cubic yard for earthwork done under the contract: Held, that the work of filling in between the ties with earth, after the track was laid, should be taken and measured as earth work, to be paid for at the rate of twenty cents per cubic yard, and was not embraced in the work of laying the track.</p> <p>3. A contract was entered into between a contractor and a railroad company, by which the contractor undertook to grade the road at a certain price per cubic yard for the earth work, and a certain price per mile for laying the track, the track to be laid with a good even surface. A portion of the track had previously been graded, and, at the solicitation of the company, the contractor laid the track on the old graded work in the winter time, when it was impossible to do the grading that should have been done, but afterwards graded it properly, filling in and raising the track two and a half feet: Held, that it was immaterial whether this grading was done before or after the track was laid; it was none the less grading, and should be paid for, as suc