test has been exposed to disease, and, if the | vented from completing, the work by the default cattle themselves may be kept out of the state, it is fairly within the discretion confided in boards of health to exclude also milk, the produce of the cattle, which it is proved may at times convey the disease.

BOYCE, J. (charging the jury). Gentlemen of the jury: This is an action of assumpsit, on the common counts, brought by Harry E. Elliott and Samuel W. Elliott, trading as H. E. Elliott & Son, against Samuel J. Wilson, trading as S. J. Wilson & Son, to recover the sum of $348.93, as originally stated, for [Ed. Note. For other cases, see Assumpsit, work and labor and for the use of a maAction of, Cent. Dig. §§ 14-26; Dec. Dig. § 5.*]|chine, alleged by the plaintiffs to have been 2. WORK AND LABOR (§ 14*)-SERVICES-EX- performed and used by the defendant in makWhere either party to a contract for serv- ing concrete building blocks for the erection ices has partially performed, but has been pre-of a building for the defendant. It appears

from a contract in writing between the parties which is in evidence before you by consent, that the plaintiffs had contracted to erect a building with a cellar for the defendant in the town of Milton, last year.

It is conceded that a dispute arose between the parties as to the proper interpretation and meaning of the specifications respecting the thickness and mode of construction of the basement walls of the building. And the plaintiffs maintain that in consequence of the dispute or disagreement, they were prevented from proceeding with and completing the building.

This action was not brought to recover damages for a breach of the contract, but to recover compensation for the work and labor alleged to have been performed by the plaintiffs and their workmen under the contract prior to the time when, as they claim, they were prevented from proceeding further on the building, and for other demands set forth in their bill of particulars, which is as follows:

"Plaintiffs' Bill of Particulars.

1910. May 11. To 4,500 cement blocks at 8 cts.. May 11. To 13 lintels and sills at $1.00

May 11.

To work and labor in exca-
vating and erecting forms
for foundation

Sept. 3. To use of block machines
from May 11 to Sept. 3,
1910, 100 days, at $2.00..

[1] As a general principle, where there has been a special agreement, the parties must resort to their remedies upon and seek their redress under it, and cannot proceed upon the common counts; but when the contract of service has been entirely performed and executed under such a contract, and the wages only remain to be paid for it, the common indebitatus assumpsit count for work and labor may be maintained for the recovery of the money.

[2] So, too, where either party has partially performed the special agreement pursuant Ito the terms of it, but has been prevented from completing or perfecting it, by the default or misconduct of the other party, the party so interrupted and prevented from completing it may recover on the common counts and in quantum meruit, for his partial services up to the time when he was stopped, whatever they were reasonably worth. Gartland v. Steward & Clark, 2 Houst. 277; Hurlock v. Murphy & Copperthwaite, 2 Houst.

551.

Mc

[3] The contract between the parties, in evidence, can be of no assistance to you in coming to a determination upon the issue of $360 00 fact in this case, under the pleadings and evidence. The plaintiff's' demand is based up13 00 on the value of the work and labor to the defendant, alleged to have been performed by 32 84 them and their workmen, from the time the work on the building was commenced to the time they ceased to work thereon, as well as upon the value of the use of the machine to the defendant, alleged to have been retained and used by him in making the necessary additional blocks for the completion of the building after the plaintiffs had ceased to work thereon.

200 00 $605 84

$ 10 00

$ 25 00

50 00

40 00

26 00 20 00 38 00 30 00 17 91 $256 91

Balance due, $605.84-$256.91, or $348.93."

At the close of the testimony on both sides counsel for the plaintiff restated the demand of the plaintiffs as follows:

The plaintiffs' demand

as

$360 00

13 00 32 84 20 00

$425 84

$256 91
30 49
3 93

The various items and character of the plaintiffs' demand is disclosed by the restatement of their bill of particulars, which we have read to you.

[4] You need not consider the cost of the cement used in making the building blocks and lintels, either before or after the plaintiffs left off working on the building, for it is admitted by them that the defendant paid for the same; nor need you consider whether the plaintiffs mixed and made the blocks and lintels according to the specifications, annexed to the contract between the parties, for it is admitted by the defendant that he used them in the erection of the building. He also admitted that he used the block machine 10 days according to the claim of the plaintiffs in the restatement of their demand.

The vital questions for your determination, to be ascertained by you from the evidence, 50 are: (1) What were the services rendered by 2 03 the plaintiffs, and the use of the machine by 6 44 the defendant, reasonably worth to the de10 00 fendant? (2) Has the defendant fully paid $310 30 the plaintiffs for the services rendered and for the use of the machine? $115 54 restated is

The plaintiffs admit that the defendant did, from time to time, make payments on

they claim that there remains a balance due | 1906. 6 Pennewill, 52, 63 Atl. 801. In that them according to their demand.

The defendant insists that he has fully paid the plaintiffs for all services rendered and that he made advances to and for them, at their request, in excess of all demands against him.

case it appears there were 35 signers, all of whom were alleged to be freeholders residing in the particular school district. Six of said signers testified that the application had not been read to them, nor had they read the same themselves.

The contentions of the parties, as you have The court said: "The statute (chapter 418, heard them, are questions of fact which you§ 4, vol. 14, Laws of Delaware-Rev. Code, must determine from all the evidence be- p. 413) requires that the applicant for a lifore you, throwing any light upon the plain-cense to sell intoxicating liquor shall present tiffs' demand and the payments made by the a petition with certain recommendations and defendant to and for the plaintiffs, on ac- that each person signing said recommendacount of their demand. tion must either have read it himself or have had the same read to him. That is the positive mandate of the law. As the evidence before us discloses that the petition was not read to or read by each of the signers to the same, we hold that the law has not been complied with, that the certificate is void, and we therefore refuse the license on that ground."

It is for you to find from the evidence whether the defendant is indebted to the plaintiffs, and, if so, for what amount.

[5] You are the judges of the weight and value of the testimony of the witness. And where the testimony is conflicting, as in this case, you should reconcile it if you can; If you cannot, you should accept that part of the testimony which in view of all the circumstances you deem most worthy of credit, and reject that which you deem the least worthy of credit.

Your verdict should be either for the plaintiffs for such sum as you find to be due them, not in excess of the amount claimed, or for the defendant, according as the evidence preponderates.

(2 Boyce, 450)

In re HEINEL.

The ruling in the Veasey Case has been followed perhaps in one or two cases since, but with some doubt as to its correctness as reported.

After maturely considering the question. which is again raised in the present case, and after a full conference with all of the judges who are not now sitting, we have reached the conclusion that the ruling in the Veasey Case should not be followed, at least to the full extent to which the opinion of the court seems to go.

It does seem to us that the failure of one

(Court of General Sessions of Delaware. New or more of the signers to read the recom

Castle. May 12, 1911.)

INTOXICATING LIQUORS (§ 66*)-LICENSE TO
SELL-APPLICATION-SUFFICIENCY.

That one of the signers of a recommendation of an applicant for a license to sell intoxicants did not read or have the same read to him, as required by Rev. Code 1852, amended to 1893, p. 413 (14 Del. Laws, c. 418) § 4, is not ground for refusing the license, where there were sufficient signers who complied with the requirement.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 66; Dec. Dig. § 66.*]

mendation, or have the same read to them, should not defeat the license, when the full number of signers required by the law remain after eliminating those who have not complied with the statute.

We think there were some facts in the

case cited that do not appear in the report, and which may have had some weight with the court in reaching their decision.

From information that we have received in regard to such case, we believe that there Application by Arthur G. Heinel for a li- was some doubt in the minds of the court cense to sell intoxicating liquors. On objec- whether there was a sufficient number of tion to granting the license. Objection over- signers left after eliminating those who adruled. mitted that the recommendation had not Argued before PENNEWILL, C. J., and been read by or to them. Some of the names BOYCE, J.

John G. Gray, for applicant. Caleb E. Burchenal and Horace G. Eastburn, for remonstrants.

were written on a paper that was attached to, or pasted on, the original petition, and it was not clear to the court when the attached paper was signed or affixed.

If the court should be clearly of the opin

PENNEWILL, C. J., delivering the opinion that the applicant had made a false affiion of the court.

The first objection to the granting of the above stated application is that one of the signers of the applicant's recommendation had neither read the same himself nor had it read to him. In support of the objection is cited the case of one Veasey which was decided at the April term in Sussex county,

davit, knowing at the time that it was false, it might be reasonable to hold that such a person was not a man of good moral character within the meaning of the act, and that a license should not, therefore, be granted to him, but there is no evidence in this case to establish such fact.

It is not denied that after excluding the

signer who did not read the recommenda- | as to the time when the alleged offense was tion, or have it read to him, there are left at committed was insufficient.

(Court of General Sessions of Delaware. Kent. 1. MASTER AND SERVANT (§ 198*)-RAILROADS -FELLOW SERVANTS. Feb. 21, 1911.)

Application by defendant for continuance, against the Maine Central Railroad Comon affidavit alleging the absence of a ma-pany. terial, nonresident witness. The state objecting to the sufficiency of the affidavit, it was held sufficient.

Action on the case to recover damages for Counsel for defendant moved for a con- personal injuries sustained by the plaintiff, tinuance of the above stated case until the a minor, while acting as fireman upon one of April term, 1911, basing said motion upon the defendant's locomotives in a head-on colan affidavit of the defendant, in due form, al-lision with another locomotive of the defendleging "that he has a material witness who is now living in Chester, Pa.; that the name of said witness is William Butler; that this

motion of defendant for a new trial and on | sibilities upon him, a demand for a care exceptions.

[1] The plaintiff claims that one of the causes of the collision was the negligence of the train dispatcher of the defendant. The greater weight of authority is to the effect that a train dispatcher and the engineers and firemen of the trains over whose movements he has direction are not fellow servants, but that as to such employés he is a vice principal. While the precise question has, perhaps, never been directly determined in this state, an affirmative answer is indicated by several decisions. Donnelly v. Granite Co., 90 Me. 110, 115, 116, 37 Atl. 874; Hall v. Emerson-Stevens Co., 94 Me. 445, 450, 47 Atl. 924; Small v. Manufacturing Co., 94 Me. 551, 555, 48 Atl. 177; Hume v. Power Co., 106 Me. 78, 82, 75 Atl. 300; Lasky v. Railway Co., 83 Me. 461, 472, 22 Atl. 367. It is directly so held in Ricker v. Central R. R. Co., 73 N. J. Law, 751, 64 Atl. 1068, 7 L. R. A. (N. S.) 650. See same case, 9 Am. & Eng. Ann. Cas. 785, and note, pp. 788-790, where the authorities are collected. Upon the undisputed facts of this case, we must hold as matter of law the train dispatcher was a vice principal. See Lasky V. Railway Co., ubi supra.

which he omitted to observe." Santa Fé Pacific R. R. v. Holmes, 202 U. S. 438, 445, 26 Sup. Ct. 676, 679, 50 L. Ed. 1094. His negligence being that of defendant, albeit the negligence of the conductor and engineer were concurrent, we find no occasion to disturb the finding of the jury as to the liability of defendant.

[3] The jury awarded the plaintiff damages to the amount of $12,821. He was a young man 19 years of age, of exceptional physical development and condition. His injuries were severe. His right eye was so injured as to require removal, and the upper surface of the lower portion of the orbit was shattered. The upper jaw was fractured, one tooth was lost, and another was broken. The face was cut from a point over the right eye, through the nose and upper lip, to the chin, and a knee was wrenched. At the end of two or three months the health of plaintiff was practically, if not entirely, restored, and all external wounds were then long since healed. At the time of trial there was still a discharge of natural secretion from about the eye, which was disagreeable and offensive, and the nose was disfigured and unsightly. But it is apparent from the evidence that the discharges from the eye socket can be obviated and the appearance of the nose greatly improved by minor surgical operations. The disfigurement from loss of the eye itself can obviously be greatly lessened. The visual sense must, of course, be considerably impaired, and the danger by accident of complete blindness much increased. It is questionable, while his physical powers seem re-established, if he be capable of earning as much wages as before the accident. Upon a careful examination of the evidence, we are reluctantly forced to conclude that the verdict is excessive. Scrupulously regarding all the elements of damage, we must order a new trial, unless the plaintiff remits all of the verdict in excess of $7,500.

[2] The conductor and engineer of the train upon which plaintiff was fireman, having received the train dispatcher's order, signed the train register in the office of the latter at 2:40 p. m., and at the same time indicated thereon the same hour as the time of departure. The train register, as well as the train sheet and time-table, lay upon the desk of the train dispatcher, and it was his duty to enter the hour of the departure of all trains at once upon the train sheet; but it is not necessary to determine his care or want of care in failing to do so. At 2:45 p. m., which, upon the evidence, the jury would be warranted in finding the latest moment at which he had actual knowledge that the entry of the departure of train 301 was 2:40 p. m. and that that train might have departed in violation of the rule requiring it to await the arrival of train 28, the latter was still at West Benton, and no report of its departure had been received at Waterville. It did not leave there until 2:48 Motion sustained. New trial ordered, unp. m. Ample time was afforded him to send a less plaintiff, within 60 days after receipt of telegraphic message or order to West Benton, the certificate of decision of this court, redelaying the departure of train 28 until fur-mits all of the verdict in excess of $7,500. ther order. Instead of so doing, after some delay he telephoned to the yard at Waterville and ascertained, about 2:55 p. m., that train 301 had departed. At that time the collision had already occurred. The duty of the train dispatcher is not fulfilled by giving an order. When he knows, or in the exercise of due care ought to know, that danger may arise from the execution, negligent or otherwise, of an order, he must act and act promptly. In this case, there had been "brought to him, considering his position and the respon

It becomes unnecessary to consider the exceptions, in view of the conclusions reached upon plaintiff's motion.

(76 N. H. 135)

GATES v. TOWN OF MILAN. (Supreme Court of New Hampshire. Coos. May 2, 1911.)

1. HIGHWAYS (§ 190*)-REPAIRS-WORK BY TOWN-ACTION-GOVERNMENTAL CAPACITY.

A town, in performing its duty to repair highways, imposed by Pub. St. 1901, c. 75, § 1, acts in a public or governmental capacity, and is therefore not liable in damages for injuries