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ne Circuit Court of the United States for the District

elow, see 154 Fed. 749. arland, Asst. U. S. Atty. (Asa P. French, U. S. Atty.,

Bingham (Bingham, Smith & Hill, on the brief), for

r and PUTNAM, Circuit Judges, and ALDRICH,

Circuit Judge. This case turns on the construction which concludes paragraph 391 of the customs act of c. 11, § 1, Schedule L, 30 Stat. 187 (U. S. Comp. St. , which paragraph is as follows: nufactures of silk, or of which silk is the component mavalue, including such as have india-rubber as a component specially provided for in this act, and all Jacquard figured ece, made on looms, of which silk is the component material dyed in the yarn, and containing two or more colors in the r centum ad valorem; Provided: that all manufactures, of a component material, shall be classified and assessed for actures of wool.” 1 States maintain that this paragraph is to be construed manufactures of which wool is a component material to tent as though the paragraph was a separate section of jestion, and disconnected from the position which it occhedule -Silks and Silk Goods.” If the United States the judgment of the Circuit Court must be reversed; othist be affirmed. A full statement of the circumstances is opinion of the learned judge of the Circuit Court, to which or any additional information required, and in which we he Board of General Appraisers decided in favor of the ut the paragraph which we have quoted was not referred

Apparently the United States made before them no claim of it, and it certainly cannot be said that there has been cal construction or application of the proviso which suppresent contention. On the other hand, the learned judge cuit Court observes as follows: r interpretation be given to the proviso of paragraph 391, I canthat it was intended to control the language of all the other

of the tariff act and to make many of them nugatory, as is conche government." ng to the ordinary rule, a proviso at the close of a section, ndependent paragraph like that now before us, is to be cononly limiting, or as being limited by, what precedes it thereourse, there are some necessary exceptions to the rule, the tement of each of which is found in United States v. Falk, . 143, 149, 150, 27 Sup. Ct. 191, 51 L. Ed. 411. In view of ping results explained by the learned judge of the Circuit hich would follow from not applying the general rule to the case, we must hold that it does so apply, and that the words

CITY OF SI

"all manufactures" found in the proviso should be held to be only a repetition of the same words with which the paragraph begins, and as having absolute relation thereto.

The judgment of the Circuit Court is affirmed.

CITY OF ST. CHARLES v. STOOKEY.
(Circuit Court of Appeals, Eighth Circuit. June 11, 1907.)

No. 2,508. 1. CONTRACTS-ACTION FOR PRICE-RIGHT OF ACTION-SUBSTANTIAL PERFORM.

ANCE.

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An action for the contract price may be maintained either upon the contract, upon an allegation of performance, or upon a quantum meruit, where one has substantially though not completely performed his agree ment, and the other party has received and retained the benefits of such performance. The other party, however, may recover the damages he has sustained by the failure of the first party to completely perform, either by an independent action before he is sued, or by a counterclaim after suit has been commenced against him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, $

1549-1557.) 2. SAME-SUBMISSION OF ISSUES.

A count upon the contract and one upon the quantum meruit for the same relief may be submitted to a jury together, under an instruction

that there can be but one recovery. 3. WORK AND LABOR-EVIDENCE-ADMISSIBILITY.

In in action ou a quantum meruit for the value of the work and materials furnished under a contract partially performed, the latter is eridence of their value.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Work and Labor,

$ 52.] 4. Courts—UNITED STATES COURTS-PROCEDURE—VERDICT.

A general verdict on several counts in a complaint and several counter. claims in an answer is sufficient in a national court in an action at law, although several or special verdicts are required in such cases in the courts

of the state in which the trial is had. 5. SAME--CONFORBUTY TO STATE PRACTICE-STATUTORY PROVISIONS.

The act of conformity (section 914, Rev. St. [U. S. Comp. St. 1901, p. 684]) does not require the courts of the United States to adopt any rule of pleading, practice, or procedure enacted by state statute or announced by the decision of a state court which would restrict their jurisdiction, or unwisely incumber the administration of justice in their tribunals. It only requires conformity “as near as may be."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Courts, $$ 899-910.

Conformity of practice in common-law actions to that of state court,

see notes to 5 C. C. A. 594; 27 C. C. A. 392). 6. ARBITRATION AND AWARD-ARBITRATORS-AUTHORITY-TERMINATION.

The power of an arbiter is exhausted by a final award, and he may not subsequently modify, revoke, or annul his finding, or make a new award upon the same issues.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 4, Arbitration and

Award, $$ 355–358.] 7. CONTRACTS_PERFORMANCE-CERTIFICATE OF ENGINEER-MODIFICATION.

An engineer empowered by the parties to an agreement to determine when it was completed to his satisfaction, and when 15 per cent of the

price, which was to be ret
estimate in which he certiti

1903. On November 5,
te charged the contractor
estimate. Held, the power
sas completed and that th)
first estimate, and the secon

(Ed. Note.-For cases in YCSICIPAL CORPORATIONSDIOS OF CLAIM.

The presentation of a cla tenance of an action upon Inalty for a failure to pre clan is unliquidated, the ld

[Ed. Note.-For cases in porations, $ 2193, 2213.) SAVE-GOVERNING Body-PRO

The legislative body of a be charter or statute from by ordinance. Sections JS pp. 291, 2955), do not requ time for the performance o La grant such an extensio

[Ed. Note.-For cases ir

Prations, g 895.)
1. PLEADING-ISSUES-EVIDEN

The plaintiff pleaded a
Yotember 1, 1902" and ti
from September 1, 1902.
not hold the pleader to
thereby to prove a near bu

[Ed. Note.-For cases in

1311.)
*I COSTRACTS-CONSTRUCTION

An extension of “at le
trne not less than 60 day
Expire.

[Ed. Note.-For cases i

;-)
a UCICIPAL COBPORATION

ARCE-APPROVAL OF

an engineer was an batract between the city ter to do extra work wi all questions which shou by the contractor.

Afte the satisfaction of the e three months, a break ar dered them unfit for use city council, the engineer to make them water tigi Tbe contractor answered that be would not repair of the city and not as an contained the notice was tractor was responsible fo

der the contract. žşüabus by the Court.)

was to be retained until that time, was due, made a final which he certified that this 15 per cent. was due on January 2 November 5, 1903, he made another final estimate, wherein

the contractor $3,667.10, which did not appear in his former Held, the power of the engineer to determine that the work eted and that the 15 per cent. was due was exhausted by his ate, and the second was not binding upon the parties. te. For cases in point, see Cent. Dig. vol. 11, Contracts, § 1326.)

CORPORATIONS-ACTIONS-CONDITIONS PRECEDENT-PRESENTACLAIM. esentation of a claim to a city is not indispensable to the mainof an action upon it, under $ 5854, Rev. St. Mo. 1899. The only for a failure to present it is disallowance by the city, and, if the

unliquidated, the loss of costs. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Coras, $8 2193, 2213.) EOVERNING BODY-PROCEEDINGS-CONTRACTS.

legislative body of a city may act by resolution or motion, unless arter or statute from which it derives its powers requires it to act linance. Sections 5838 and 5846, Rev. St. Mo. 1899 [Ann. St. 1906, 31, 2955), do not require the passage of an ordinance to extend the for the performance of a contract with the city, but its city council grant such an extension by motion or resolution. d. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corations, § 895.) ADING-ISSUES-EVIDENCE ADMISSIBLE. The plaintiff pleaded an extension of time to a later date, “to wit

rember 1, 1902” and then proved its extension "at least sixty days" om September 1, 1902. Held, pleading a date under a videlicet does ot hold the pleader to the exact date named, and he is not estopped hereby to prove a near but different date.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, 88 1306, 1311.] CONTRACTS-CONSTRUCTION--PARTICULAR PHRASES.

An extension of "at least 60 days" is an extension for an indefinite time not less than 60 days, and gives a reasonable time after the 60 days expire.

[Ed. Note. For cases in point, see Cent. Dig. vol. 11, Contracts, $8 963

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2. MUNICIPAL CORPORATIONS-Public IMI'ROVEMENTS CONTRACTS_PERFORM ANCE-APPROVAL OF ENGINEER.

An engineer was an employé of the city and also an arbiter under a contract between the city and the contractor, empowered to direct the lat. ter to do extra work with the approval of the city council, and to decide all questions which should arise relative to the installation of waterworks by the contractor. After the works had been substantially completed to the satisfaction of the engineer, and had been in the use of the city for three months, a break and leak occurred in the settling basins which rendered them unfit for use. Thereupon, by direction of a committee of the city council, the engineer notified the contractor to repair the basins and to make them water tight, or that the city would do so at his expense. The contractor answered that he was not responsible for the break, and that he would not repair it. Held, the engineer was acting as the agent of the city and not as an arbiter in giving the notice, and his letter which contained the notice was not his decision as arbiter, either that the contractor was responsible for the repairs, or that they were extra work un

der the contract. (Syllabus by the Court.)

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

Shepard Barclay (Thomas T. Fauntleroy, on the brief), for plaintiff in error.

Fred B. Merrills and Daniel N. Kirby, for defendant in error. Before SANBORN and HOOK, Circuit Judges.

SANBORN, Circuit Judge. In this case the plaintiff below, Charles A. Stookey, recovered a judgment of $10,695.82, the unpaid balance of the agreed price of the construction of a system of waterworks, which consisted of three settling basins, boilers, pumps, power house. pipes, distribution mains and hydrants, for the city of St. Charles The contract price of the works was about $84,000, and the city had paid the contractor about $75,000, and had taken possession of and was using the works. They had been built under written contracts and specifications, which provided that the contractor should make excavations as directed by the engineer; that the engineer should stake out all work; that the engineer might make alterations in line, grade, form, or dimensions of the work; that the engineer should in all cases. decide all questions which might arise relative to the installation of the plant by the contractor; that his estimates and decisions should be final and conclusive; that the contractor should be responsible for the entire work as a whole until its acceptance by the city; that the settling basins should be filled with water, and should stand until proved to be water tight to the satisfaction of the engineer; that “all leaks, breaks, or defects caused by improper material or workmanship that develop within six months after the plant is accepted by city must be repaired or replaced by contractor; that the contractor shall do such extra work, in addition to his contract, as the engineer may direct in writing, subject to the approval of the council"; that estimates should be made, and 80 per cent. thereof should be paid monthly as the work progressed; that “when contract is completed and tested to the satisfaction of the engineer and all repairs made, 15 per cent of the contract price will be paid the contractor”; and that the remaining 5 per cent. should be paid, one-half in three months and one-half in six months after the acceptance of the plant by the city, less the amount, if any, due the city for repairs to the plant.

Early in January, 1903, the plant had been constructed and tested to the satisfaction of the engineer, and on January 5, 1903, he made a final estimate, subject to such exceptions as might be taken into account by the committee in charge, in which he certified the full amount of the bid for the three settling basins, to be earned and the 15 per cent. payable when the work was completed to his satisfaction and when all repairs were made, to be due. The committee made certain specifications of defects, which the contractor subsequently proceeded to remedy. They inspected and tested the works, and on January 15. 1903, pursuant to a recommendation of the committee, the city paid the contractor $12,000 on this estimate. On February 9, 1903, the city took and thereafter retained possession of the waterworks system. From time to time, as requested, the engineer stopped leaks in the

12ment to be made upon

Ileted within the time sped

Teed price, less the dama

CITY OF

Basins and made repairs, Labout May 25, 1903, a por Fasins tipped toward the c To of the basins so that th acently repaired this break

ssue in this case is whethe apense of these repairs. Eis break was caused by in 4 by the contractor, that th te specified thickness of

dermined the east wall al

ere was testimony that th Egineer to locate the east ach, sand, and silt, and bl serial and place the founda so that the portion of the +2) the remainder of the soud rock, and that the crad The issue which this evid ncer proper instructions, engineer was the real cause

the plaintiff's improper cent evidence to sustain ve case in this court that n

The first contention of Fecause it did not instruct They say: (1) That the

ater tight; that they wer 9, 1903; that the engine hem so, and he declined

used by his improper w te was right their repair

by the terms of his cont une 2, 1903, was a conc cant for use; (3) that the Feriormance of the contrac the work and materials fı Etily performed, the city

the first count at least

cate of the engineer, and si

¥ the city, and there was 2 no acceptance by the scbmitted to the jury the c uod counts at the same tii

uitstantially performed his benefits of his performanc Carged the jury that in sy he former's failure to con

repairs, which he completed before May 20, 1903. 903, a portion of the east wall of two of the settling vard the east, and cracked the floor and the ends of s so that they would not hold water. The city subse

this break at a cost of $5,667.03, and the meritorious e is whether the contractor or the city should bear the e repairs. There was evidence, on the one hand, that aused by improper material and workmanship furnishctor, that the floors of the basins were not covered with ickness of cement, so that the leakages through them

east wall and produced the break. On the other hand, mony that this break was caused by the direction of the rate the east wall so that a portion of it rested upon d silt, and by his direction not to remove this soft mae the foundation of the wall upon the solid ck below rtion of the wall upon this silt and sand settled more inder of the wall and of the basins which rested on I that the crack in the basins was caused by this settling. ich this evidence presented was submitted to the jury instructions, and they found that the misdirection of the the real cause of the break, and that it was not produced ff's improper workmanship or material. There was sufce to sustain this conclusion, and in the consideration of is court that must be deemed to be the fact. contention of counsel for the city is that the court erred d not instruct the jury to return a verdict for the city. (1) That the contractor agreed that the basins should be

that they were not so, and were unfit for use after May hat the engineer notified him on June 2, 1903, to make d he declined on the ground that their condition was not his improper workmanship or material, and that even if at their repair was extra work, which he was required to erms of his contract; (2) that the letter of the engineer of 03, was a conclusive determination that the basins were se; (3) that there are two counts in the petition, one for e of the contract and the other for the reasonable value of and materials furnished, and that as the contractor never ormed, the city was entitled to a peremptory instruction st count at least; (4) that the contract requires the final o be made upon the completion of the work on the certifiengineer, and six months after the acceptance of the plant y, and there was no certificate of completion by the engineer cceptance by the city; (5) that the court should not have

to the jury the causes of action stated in the first and sects at the same time; and (6) that the work was not comthin the time specified in the contract. But the contractor ally performed his agreement, the city took and retained the of his performance, and the court below rightly held and the jury that in such a case the contractor may recover the rice, less the damages which have resulted to the owner from ner's failure to completely perform. If the repairs made by

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