Huckestein v. Nunnery Hill Incline Plane Co. ( 1896 )

Per Curiam,

The learned court below gave to the plaintiff every possible opportunity to recover before the jury that can be conceived. There was no provision in any of the correspondence, or in the contract as signed, or in the annexed specifications that gave .an absolute right to the plaintiff to have any earth excavation whatever. But there was positive provision that all.the work, including excavation, should be done, “ according to the directions and under the supervision of the engineer in charge of the-construction of said incline.” As no excavation, for- the loss of which the present action is brought, was directed by the engineer it is difficult to conceive upon what rational basis the claim can be sustained. Then too the receipt in full for' every item of claim made after the work was all completed, and which was “ in full settlement for all stone work and excavation, labor, material, etc., furnished in-'connection with the construction, etc., of the Nunnery Hill Incline Plane,” may well have convinced the jury that all demands under the contract were fully adjusted, settled and paid. Nevertheless, notwithstanding this receipt in full, the court left it to the jury to say whether this extraordinary claim for loss of profits was intended to be included within it. This suit was not commenced until nearly six years bad elapsed after the work was all done, and in all that time this claim for alleged loss of profits bad never been beard of. The only wonder is that the verdict was not absolutely in favor of the defendant instead of for six and a quarter cents in the plaintiff’s favor. The claim is very stale, it is unsupported by any reasonable view of the testimony and in our opinion it is entirely devoid of merit. The verdict was a condemnation of it on its merits. We discover no error in the several assignments and they are all dismissed.

• Judgment affirmed.