As your contract, we hold ourselves in readiness price of steel in the winter of 1901, it was very greatly to the advantage of the defendant to get rid of the contract, for the reason that it could buy steel at very much lower prices than its cost would be to it under the contract, and there is no apparent reason why the plaintiff should avoid the contract." The court below found that the plaintiff was entitled to recover for the value of the ingots actually delivered by it, and which were found to be of such a character that they should have been accepted by the defendant. But he refused to allow for the loss on materials purchased by the plaintiff at the instance and request of the defendant to be manufactured into ingots for it, and he also refused to allow as damages for the breaking of the contract, the minimum amount stipulated to be paid by the defendant company in case the contract should be canceled by it. The failure to award damages for the breach of the contract seems to us inconsistent with the findings of fact, and with the construction of the contract as set forth in the first conclusion of law by the trial judge, in which he holds that: "The contract is not one for the delivery to the defendant of such an amount of steel ingots as it might choose to order up to 100 tons a day, but it is only for the ingots required for its use; that is, all that it should use from time to time in operating its 20-inch mill, which was the only way it could use them." We agree fully with this conclusion and in a careful examination of the evidence we find nothing therein to justify the suggestion that any change was ever made in the terms of the contract; nor do we find any support for the fourth and fifth conclusions of law reached by the trial judge, wherein he holds that the plaintiff did not continue to stand upon the position that it was only obliged to fur-follow the advice or obey the orders of denish a supply of ingots sufficient to meet the capacity of defendant's mill. As we read the evidence, it does not appear that the plaintiff in any way waived its right under the contract to supply only such an amount of steel as defendant could use in its 20-inch mill or did anything which would estop it from maintaining the position that it had delivered all the ingots which the defendant required for its use in the months of January, February, and March, 1901. Our examination of the record satisfies us that the plaintiff did take and consistently maintain throughout the controversy the position that defendant was not entitled, under the contract, to the quantity of ingots demanded by it, although plaintiff did profess its willingness to supply all that were called for, if payment were made for what had been supplied. Such payment was never made. In its letter of February 21st, referring to the defendant's demand for more ingots, plaintiff said: "We can only say that, although you do not need the ingots which you have seen We are also convinced by a very close examination of the evidence that there is no sound basis for the second, third, and eighth conclusion of law, in which the trial judge refuses to award to the plaintiff an amount sufficient to make good the loss upon the raw materials purchased for the benefit of the defendant company, and at its suggestion. It may be true that the plaintiff was not under the strict terms of the contract bound to purchase materials in advance of actual need for manufacture, and that it was not bound to fendant as to such purchases. It might have pursued the hand to mouth policy, and saved to itself some risk and much trouble thereby. But, beyond all question, its action in the purchase of materials was taken in the supposed interest of the defendant, and for the most part at its express direction, and the latter cannot now be permitted to disavow responsibility for the result. The purchase of all the materials in question was made in order that they might be used under the contract for the manufacture of ingots for the defendant and at its cost. The plaintiff under the contract had no concern as to the cost except to protect as best it could the interests of the defendant in the purchase of materials; and it was obviously its duty to comply with the reasonable demands of the defendant in that respect. The evidence shows that it acted in entire good faith, and that it made every effort to protect the interest of the defendant company. The latter must therefore be held chargeable with the final loss which resulted from the disposition of the materials pur first, second, and fifth assignments of error ready indicated, the evidence shows that are therefore sustained. Counsel for appellant complain in the sixth assignment that the court below erred in overruling their exception to the ninth conclusion of law, which conclusion was as follows: "The plaintiff's bill of items includes a claim for the cost of the plant and also a claim for the profit guaranteed during the two years of the existence of the contract. We are quite unable to see how the plaintiff can claim both of these at the same time. It could only successfully claim the former by showing that the contract had been wrongfully brought to an end by the defendant without default on its own part, and a claim for the latter must be founded upon the performance of the contract. As neither of these events has happened, we are of opinion that it cannot recover either of these items." The latter part of this conclusion is not justified by the evidence, nor is it consistent with the construction of the contract by the court in its first conclusion of law, in which it was held that the obligation upon the plaintiff was to furnish only as many ingots as the defendant could use in its 20-inch mill. The evidence shows that the plaintiff never failed to furnish at least that amount, and consequently it was never in default in that respect. The defendant company by its refusal to accept and pay for the ingots delivered to it in accordance with the contract brought it to an end without fault upon the part of the plaintiff. The trial judge was, however, entirely right in holding that the plaintiff could not recover both profits and cost of the plant. It was entitled to the profits stipulated for in the contract. But clearly, under the terms of the agreement, the cost of the plant was one of the elements which the profits agreed upon were to cover and replace. The additional furnaces required were estimated to cost $25,000, and this amount was to be made good out of the minimum profits for which provision was made. The remainder of the guaranteed profits, an equal amount, was to go to plaintiff as a bonus for the cancellation of the contract. Of course, the main inducement to the plaintiff in entering into the contract was the prospect of the much larger profits which would ensue if the agreement should be carried out as contemplated by both parties at the time. As we have al the contract was brought to an end through no fault of the plaintiff, and it is therefore entitled to compensation in the first place for the ingots which it manufactured under the contract for the defendant company. If we have correctly apprehended the finding of the court below in this respect, the price of the ingots delivered, and for which recovery was allowed, was $58,249.80, with interest from the date of the judgment, September 17, 1908. This included a certain amount of profit which is stated by counsel for appellant as being $7,666.57. Whatever this amount was, there should be allowed to plaintiff, in addition thereto, a sum sufficient to bring the total profits up to $50,000, the minimum amount stipulated in the contract. This would apparently be the further sum of $42,333.43. In addition to these items, the plaintiff is entitled to be made whole for the loss sustained on the resale of the melting materials purchased by it at the direction of, and for the benefit of, the defendant company in the carrying out of the contract. This is stated by counsel for appellant as being $24,423.18, with interest thereon from April 3, 1902. From the sum of these items is to be deducted the amount of cash advanced in installments by the defendant company to the plaintiff, which in the aggregate was $40,000, with interest thereon from the dates of the payments. The balance thus shown will be the amount to which the plaintiff company is justly entitled, and for which judgment in its favor should be entered. This will only make good to the plaintiff the expenditures actually made by it under the contract for the purchase of raw materials required to enable it to carry out the agreement, and, in addition, will yield to it a clear bonus of $25,000 for the loss of the contract, as was contemplated in the agreement, and will also replace substantially the amount expended by the plaintiff in the construction of the additional furnaces required for the purposes of the contract. The calculations necessary to liquidate the judgment in accordance with the views herein expressed will be made under the approval of the court below. The judgment is set aside; and it is ordered that the record be remitted, that judgment may be entered in favor of the plaintiff in accordance with this opinion. OLIVEIRA v. RHODE ISLAND CO. STREET RAILROADS (§ 112*)-OPERATION-IN- Plaintiff's evidence was that, after looking behind and listening, he drove onto defendant's street car track because of the impassable condition of the road on each side, and had continued on the track for about 1,500 feet, the road being straight and practically level, when he heard a noise and his wagon was struck from behind by a street car before he could pull off the track; that, though the sun was not up, objects could be seen from 500 feet to a quarter of a mile. Held, that the circumstances cast the burden on the company to show that it was free from negligence. [Ed. Note. For other cases, see Street Rail roads, Cent. Dig. § 228; Dec. Dig. § 112.*] who presided at the trial refused the defendant's motion for a new trial. There is nothing in this case that constitutes it an exception to the general rule referred to in the case of Wilcox v. Rhode Island Co., 29 R. I. 292, 70 Atl. 913. The damages are not so clearly excessive that we can set aside the verdict upon that ground. The defendant's exceptions are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict. (29 R. I. 511) WILLOCK v. WILLOCK. (Supreme Court of Rhode Island. May 12, 1909.) TURE. Exceptions from Superior Court, Provi- 1. DOWER (8 71*)-ACTIONS FOR DOWER-NAdence and Bristol Counties; George T. Brown, Judge. Action by John Oliveira against the Rhode Island Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled, and case remitted to the superior court for judgment on verdict. Rev. St. 1857, c. 202, § 16, as amended by Pub. Laws 1866, p. 224, c. 607, authorizing probate courts to assign dower upon the wid law jurisdiction in administering the law of ow's application, gave probate courts commondower, so that proceedings before such courts to recover dower are, in effect, legal actions. [Ed. Note.-For other cases, see Dower, Dec. Dig. § 71.*] 2. DOWER (8 90*)-MANNER OF ASSIGNING— DISCRETION OF COURT. Plaintiff's evidence was that he was driving along a road in which defendant's street car track ran, and because of the bad con- Under Rev. St. 1857, c. 202, § 17, requirdition of the road at a certain point he pulled ing probate courts to decree whether dower his team upon the street car track, after should be assigned by metes and bounds or in some special manner, as provided in the second looking behind and listening, without seeing section of the chapter, and requiring such or hearing a car, and had driven about 1,500 courts to determine the manner in which dower feet along the track, the road being straight shall be assigned, and Gen. Laws 1896, c. 264, and practically level for the whole of that dower, the court, considering the situation of § 18, providing that, in proceedings to recover distance, when he suddenly heard a buzzing the parties in interest and that of the estate, of the wires overhead, and before he could may set off dower by metes and bounds or subpull his wagon off the track one of defend-stitute therefor a fixed rental as a charge on ant's cars struck it; that the accident occurred about 6:10 a. m., and, while the sun was not yet up, it was sufficiently light to permit objects to be seen from 500 feet to a quarter of a mile distant. The evidence as to the physical conditions, however, was conflicting; defendant's evidence being that the morning was exceedingly dark and that there was a fog rising in that locality, which was low and swampy, which tended to obscure the motorman's vision, and that the motorman continually rang his bell at that place, and did not see plaintiff's wagon until it was only a few feet away, when he attempted to stop the car. Cooney & Cahill, for plaintiff. Joseph C. Sweeney and Alonzo R. Williams, for defendant. the estate, the court has discretionary power to choose in which of the ways prescribed it will set out dower. [Ed. Note.-For other cases, see Dower, Dec. Dig. § 90.*] Exceptions from Superior Court, Providence and Bristol Counties; William H. Sweetland, Presiding Justice. Petition for dower by Catherine A. Willock against Patrick A. Willock. Judgment of municipal court of the city of Providence for petitioner, and defendant appealed to the superior court, which affirmed said decree. Appellant excepts. Exceptions overruled, and case remitted, with directions. Frank H. Wildes, for appellant. Cooney & Cahill, for appellee. DUBOIS, C. J. This is an appeal from the decree of the municipal court of the city of Providence, by which dower was assigned to the appellee in a special manner oth PER CURIAM. The fact that the defendant's car was allowed to overtake and collide with the plaintiff's wagon, in the circum-er than by metes and bounds, under the prostances of the case, cast upon the defendant the burden of explaining that it was free from negligence in the accident. This it failed to do to the satisfaction of the jury before whom the case was tried. The judge •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes visions of Gen. Laws 1896, c. 264, §§ 18, 21, and of section 23 of the same chapter as amended by Court and Practice Act 1905, § 1163, out of the real estate now standing in the name of the appellant, but which, during coverture of the appellee, was the property [tion of the testimony discloses no abuse of of her husband, William Willock, now de- such discretion on the part of the superior ceased, who was also the father of the ap- court. pellant. Said appeal was duly taken to and heard by the superior court, wherein said decree of the municipal court was affirmed, and said appeal is now before this court upon the exceptions of the appellant to the decision of the superior court, affirming the decree of the municipal court. The only exception of the appellant material to this inquiry is based upon the following ground: "(2) The appellant claims that the decision, deciding that dower should not be set off by metes and bounds, and confirming the decree of the said municipal court, and decreeing that it should be set off in a special manner, was against the law and the evidence submitted in the hearing upon said appeal, and against the weight thereof." The appellant's exceptions are therefore. overruled, and the case is remitted to the superior court, with direction to enter its decree affirming the decree of the municipal court of the city of Providence. 1. EMINENT Domain (§ 148*)-COMPENSATION -INTEREST. Where a railroad company, in violation of an agreement with a landowner, excavates and removes dirt from a portion of the land not included in the agreement, the owner is entitled to interest, in addition to the value of the dirt taken from the time of taking. [Ed. Note.-For other cases, see Eminent Do2. EMINENT DOMAIN (§ 124*)-COMPENSATION -RENTAL VALUE. The provisions of Rev. St. 1857, c. 202 (“Of Dower, the Action of Dower and of Join-main, Cent. Dig. 399; Dec. Dig. § 148.*] ture") § 16, as amended by Pub. Laws, p. 224, c. 607, passed March 22, 1866, first conferred jurisdiction upon probate courts in this state, upon the application of a widow, to assign dower to her in lands, tenements, and hereditaments within the state whereof such widow is dowable. This statute was construed in Gardner v. Gardner, 10 R. I. 211 (1872), to confer upon the probate courts the common-law jurisdiction to administer the law of dower. Therefore proceedings before probate courts to recover dower are, in effect, actions at law. Prior to the passage of said chapter 607, under the provisions of Rev. St. 1857, c. 202, § 16, probate courts had jurisdiction to assign dower to a widow upon her joint application with all the heirs at law or devisees of the deceased having the next immediate estate of freehold and all persons interested in all or any of the lands, etc., whereof such widow was dowable. But even at that time upon such an application, under Rev. St. 1857, c. 202, § 17, the probate court was required in the first instance to decree in what manner the dower ought to be assigned, whether by metes and bounds or in some special and certain manner as set forth in the second section of the chapter. This provision has continued to exist as a part of the law concerning the assignment of dower up to the present time. A railroad constructed coal pockets on land, in violation of an agreement with the owner ed them to another. The company abandoned as to how they should be constructed, and rentthem, and the tenant attorned to the landowner. Held, that the railroad was liable for their the time of attornment by the tenant to the rental value from the time of completion to owner. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 332; Dec. Dig. § 124.*] 3. INTEREST (§ 22*)—JUDGMENTS. A decree allowing damages for the unlawful occupation of property by a railroad draws interest from date of entry. [Ed. Note.-For other cases, see Interest, Cent. Dig. § 49; Dec. Dig. § 22.*] Appeals from Superior Court, Washington County; William H. Sweetland, Presiding Justice. Suit by Inez Sprague against the Sea View Railroad Company. From a decree for plaintiff, both parties appeal. Modified. Complainant agreed to give a right of way over her land in accordance with a plat, and in consideration of certain conditions whereby her property would not be injured by the construction of coal pockets in a particular way, etc. The railroad company, while complainant was abroad, violated all the agreements made, and located the road in accordance with a plat not contemplated by complainant, and built coal pockets in such a manner that they were unsightly and an injury to property, and excavated and removed dirt, etc. The effect of the provision is to impose upon courts of probate the duty of determining the manner in which the dower shall be assigned; and under the provisions of Gen. Laws 1896, c. 264, § 18, în actions at law and in suits in equity the court has discretionary power to choose in which of the ways there in prescribed, considering the situation of the parties and of the estate, it will set out such dower. See Arnold v. Probate Court, 25 R. I. 506, 56 Atl. 772. A careful examinaFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes | PER CURIAM. The court is of the opinion that the finding of the superior court, in the third paragraph of the decree appealed (Supreme Court of Rhode Island. May 17, 1909.) from, that the location of the defendant's right of way should have been made adjacent ESLEECK v. CAPWELL, Town Treasurer. to the line of the Narragansett Pier Railroad Company, is correct. The present location is indeed shorter, and avoids the construction of a reverse curve, as well as requires the use of less rails and ties. These economies 1. HIGHWAYS (§ 197*)-CARE REQUIRED OF TRAVELER-CONTRIBUTORY NEGLIGENCE. It is incumbent on a traveler on a highway to use care commensurate with the danger with which he is acquainted. [Ed. Note.-For other cases, see Highways, Cent. Dig. § 498; Dec. Dig. § 197.*] the defendant was not justified in making at firmed. The award of $1,200 for damages done in the "triangle," so called, made in paragraph 4 of the decree, is inadequate. The evidence clearly shows that the defendant was not entitled to thus use that tract, and it shows also that 1,509 cubic yards of loam and 6,366 cubic yards of filling were taken therefrom, which were used in grading their roadbed in Wanda street. The defendant's superintendent, Hazard, admits these materials to have been worth, respectively, 50 cents and 15 cents per cubic yard, or a total of $1,709.40, to which should be added interest from the time of taking, viz., from July 1, 1898. The evidence fails, too, to show that the complainant ever authorized the erection of the coal pockets as they were constructed, and which the respondent offers in its answer to vacate, and the court finds that she is equitably entitled to their rental value from the time of their completion, which may be taken as January 1, 1901, to July 1, 1904, at the same rental at which the defendant's tenant, Sanford, then attorned to the complainant, viz., $25 per month for 42 months, or $1,050, with interest from July 1, 1904. The excavation to the Kingston Road from the coal pockets also appears to have been without authority, and the complainant is allowed damages at the rates above mentioned for 679 cubic yards of loam removed and 1,313 cubic yards of filling, or $536.45 therefor, with interest from January 1, 1901. There is shown no authority for the excavating and removing of material from the Kingston Road to the South Pier Road, and the complainant is entitled to damages at the same rates as above for the removal therefrom of 555 cubic yards of loam and of 1,265 of filling, amounting in all to the sum of $467.25. Interest on the last two items is allowed from a period six months later than the erection of the coal pockets from which these tracks led; that is to say, from July 1, 1901. The award of the superior court in paragraph 3 of the decree obviously draws interest from the date of entry of that decree, viz., July 11, 1908. In all other respects the decree appealed from is affirmed, and a decree in accordance herewith may be presented for entry on May 26, 1909. NEW TRIAL (§ 102*)-NEWLY DISCOVERED EVIDENCE- NECESSITY OF SHOWING DILIGENCE. will not be granted, unless due diligence to disA new trial for newly discovered evidence cover it is shown. [Ed. Note. For other cases, see New Trial, Cent. Dig. § 210; Dec. Dig. § 102.*] 3. NEW TRIAL (§ 104*)-NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE. discovered evidence which is merely cumulative. A new trial will not be granted for newly [Ed. Note. For other cases, see New Trial, Cent. Dig. § 218; Dec. Dig. § 104.*] 4. NEW TRIAL (§ 108*)-NEWLY DISCOVERED EVIDENCE-PROBABLE EFFECT. discovered evidence which would not be likely A new trial will not be granted for newly to change the result. [Ed. Note. For other cases, see New Trial, Cent. Dig. § 226; Dec. Dig. § 108.*] dence and Bristol Counties; Willard B. TanExceptions from Superior Court, Proviner, Judge. Trespass on the case for negligence by Frances J. Esleeck against Charles H. Capwell, Town Treasurer. There was a verdict for defendant, and plaintiff excepts and moves for a new trial. Exceptions overruled, and motion for a new trial denied. See, also, 28 R. I. 338, 67 Atl. 421. Edwards & Angell and James B. Littlefield, for plaintiff. Bassett & Raymond and Willis B. Richardson (R. W. Richmond, of counsel), for defendant. PER CURIAM. If we admit that the accident occurred at the place where, and in the manner in which, the plaintiff contends that it did, concerning which there is a serious conflict of testimony, nevertheless the testimony for the plaintiff fails to establish the fact that she was in the exercise of due care at the time the accident occurred. As she had traveled over the newly made road but a short time before she received her injury, and knew of the dangerous condition in which she claims it was, it was incumbent upon her to use care commensurate with the danger with which she was acquainted. It does not appear that she was obliged to leave the new road at the point she did, instead of remaining thereon until she reached its end, as she had safely done previously in the opposite direction, and for all that appears she might have done again without accident. We are of the opinion that the verdict for the defendant was rightly directed by the court. |