"12. As a conclusion of law upon these facts, and the evidence in the case as taken by the stenographer, the court finds that there is due to the plaintiffs from the defendant the sum of $13,132, with interest at six per cent, allowed as damages, from the respective times at which the same should have been paid, amounting to $2,350, making the sum of $15,482.

"13. Thereupon the court finds that the plaintiffs are entitled to recover of and from the defendant, upon their complaint herein, the sum of $15,482.

Effect of stipulation as to engineer's estimate.

"WILLIAM F. PARRET, Fudge V. C. C."

The first proposition discussed by appellant's counsel is, that the court below erred in its conclusion of law upon the above facts. One of their contentions is, that, in order to avoid the conclusive effect of the estimates made by the engineers of the railway company, it was incumbent upon appellees to prove that those estimates were the results of fraud, accident, or mistake; that the trial court did not so find, and that hence appellees are bound by those estimates, and cannot recover in this action. As we have seen, one of the stipulations in the contract was, that the engineers of the railway company should make final estimates of the quality, character, and value of the work done by appellees, and that such final estimates should be final and conclusive, as against appellees, "without further recourse or appeal." That stipulation in the contract did not and could not deprive appellees of the right to resort to the courts for a redress of wrongs, and for the recovery of whatever may have been due them. The reason why such a stipulation is invalid has been so fully stated by this court, that nothing more is required here than a citation of the cases. Bauer v. Samson Lodge Knights of Pythias, 102 Ind. 262, and cases there cited; Supreme Council of the Order of Chosen Friends v. Garrigus, 104 Ind. 133.

Same. Incompetency of engineer.

But counsel's contention cannot be maintained upon any theory. They seem to have overlooked some of the findings of the court. The fifth finding was, that, owing to the negligence, carelessness, incompetency, and mistakes of the company's engineers, the statements of the work were in many instances incorrect. That finding is entirely sufficient to show that the estimates made by the company's engineers were incorrect, and to entitle appellees to recover what was due them, notwithstanding such estimates. The tenth and eleventh findings are in accord with, and lend support to, the fifth.

It is further insisted by appellant's counsel that there is no

Exclusion

finding that appellees were wrongfully excluded from the work, and that such a finding was necessary to support the conclusions of law. That the work was taken out Delay in conof the control of appellees by the railway company is definitely stated in the seventh finding. And, taking from work. the findings as a whole, we think they sufficiently show that appellees were wrongfully excluded from the work. The contract provided that if appellees did not employ such a. force as the company's engineer might deem adequate to a completion of the work within the fixed time, he might employ such number of workmen as in his judgment would be necessary, pay them such wages as he might find necessary and expedient, and charge appellees with the amount as so much paid to them under the contract, etc. Those provisions of the contract must be given a reasonable construction. It certainly was not intended by the parties that the engineer in charge should arbitrarily, at any time, and without any sort or shadow of reason, take the work out of the control of appellees, and employ men at his pleasure. Nor could it have been intended that appellees should be subject to the whims of an incompetent, negligent, or dishonest engineer. And still less could it have been intended that the engineer might take the work out of the control of the appellees, and employ men, etc., on account of delays caused by his own fault, negligence, and incompetency. There was at least an implied undertaking on the part of the railway company that the engineer to be put in charge, with such extended powers, should be competent, honest, and reasonably careful, and that he should not make delays caused by his wrongs a pretext for taking the work out of the control of the appellees.

It was stated in the special findings, that on account of an insufficient number, and the incompetency and negligence of the local engineers, the prosecution of the work was greatly interfered with; that appellees were hindered and delayed in the prosecution and completion of the work by failure on the part of the company to procure right of way, and by failure on the part of its engineers to furnish proper stakes, to locate bridges, culverts, etc.; and that appellees could and would have completed the work within the time limited by the contract if they had not been hindered and delayed by the fault, negligence, insufficiency, and incompetency of appellant's engineers, etc. As before stated, the findings show that the work was taken out of the control of appellees, and, as we think, show that it was wrongfully taken out of their control.

It is further contended by appellant's counsel that the several findings of facts by the court below are not sustained by sufficient evidence. This court will not undertake to settle the con

flicts that may be found in the sixteen hundred pages of evidence. That was for the learned judge who tried the case below, and had opportunities of judging of the credibility of witnesses which an appellate court cannot have. We have ascertained that there is evidence tending to sustain all of the findings of the court. That fact having been ascertained, the established rule applies, which forbids a reversal of the judgment upon the weight of the evidence.

Rule as to briefs.

record

In appellant's motion for a new trial, fifty-one causes were assigned, the most of which have reference to the admission and exclusion of evidence. These are all urged here; but, as to the most of them, appellant's counsel have Reference as to done nothing more in their brief than to restate the causes. That does not meet the requirements of the rule in relation to briefs in this court. In some instances the pages of the record where the rulings of the court may be found are not given. In many others it is impossible for us to determine, from the limited amount of the evidence pointed out by reference to the pages of the record, whether or not there was error in the rulings. Parties asking for a reversal of a judgment must furnish references to such portions of the record as will show that errors intervened in the proceedings below.

One of the appellees was allowed to testify that appellant's engineer in charge of the work, on one occasion, directed that

Length of piling. Mistake of engineer.

piling of a certain length should be furnished, and that, after they were furnished upon the ground, of the length directed, the engineer ordered that portions should be cut off, which was done. Appellant's counsel insist that there was error in the admission of that testimony, for the reason, that, by the contract, appellees were to be paid only for the lineal feet of piling actually used in the work. We are not convinced that the admission of the tes

timony was erroneous. If it was competent for any purpose, its admission was not available error. It was competent, we think, as tending to show, in some degree at least, that the engineer was incompetent and careless, and that appellees were hindered and delayed in the prosecution of the work, and hence were not in default. What weight should have been given to the testimony is another question. We have no means of knowing how much importance the court below may have attached to it, nor that it was considered at all by the court in fixing the amount of recovery in favor of appellees. But, assuming that it was, and that the evidence was admitted for that purpose alone, we are yet not convinced that its admission was an error such as would justify this court in overthrowing the judgment. Appel

lant's engineers, under the terms of the contract, were put in charge of the work with almost absolute authority as to the manner in which the work should be done. Having and exercising such authority as the representative of appellant, it cannot be said that appellees, and not appellant, should suffer the loss occasioned by his mistake or wrong in ordering the piling to be of certain length.

One of the appellees was also allowed to testify, that, but for the delays which he had mentioned as having been caused by appellant and its engineers, the work contracted for Time required could have been completed within the time fixed in for constructhe contract. Some of appellees' sub-contractors tion. Expert were also allowed to testify, that they could have testimony. completed the work embraced within their contracts, on or before certain named dates, within the time for completion fixed by the contract between appellant and appellees. It is contended by appellant's counsel that the testimony was incompetent because it consisted of inferences or opinions. The witnesses. were railway builders, who, by reason of their experience, may properly be termed experts. An expert has been described as nothing more than a man of experience in the particular business. to which the inquiry relates; as one having peculiar knowledge or skill in reference to the subject-matter of inquiry; as a person instructed by experience. Lawson, Exp. Ev. pp. 195, 196; Doster v. Brown, 25 Ga. 24; Mobile Life Ins. Co. v. Walker, 58 Ala. 290.

Non-expert witnesses may state their opinions as to matters. with which they are especially acquainted, but which cannot be specifically described. Carthage Turnpike Co. v. Andrews, 102 Ind. 138; Yost v. Conway, 92 Ind. 464.

It has been said that a non-expert witness must, so far as possible, state the facts upon which he bases his opinions; that, when the case is one in which all the facts can be presented to the jury, no opinion can be given; that there are cases where the witness cannot put before the jury, in an intelligible and comprehensive form, the whole ground of his judgment or opinion, and that in such cases he may give his opinion, first stating the facts, so far as he can, upon which the opinion is based.

We agree with counsel as to the nature of the testimony to which they object; but, considering the qualifications of the witnesses, the nature of the subject-matter of the inquiry, and the statement of facts by the witnesses, we think that the testimony was competent. A person of experience in building railways can doubtless form a more correct judgment as to the length of time required to construct and complete a section of road than persons without such experience can, even though.

they may have knowledge of all the facts which can be stated by witnesses. Louisville, N. A. & C. R. Co. v. Frawley, 110 Ind. 18; s. c., 28 Am. & Eng. R. R. Cas. 308; Jeffersonville R. R. Co. v. Lanham, 27 Ind. 171; Lawson, Exp. Ev. pp. 79, 95, 460, and cases there cited; Rogers, Exp. Testimony, sect. 116, and cases there cited.

We are not advised upon what ground appellant's question to appellee Conkey, as to the reliability and responsibility of appellees' sub-contractors, was ruled out. It may have been upon the ground that the question was not within the scope of a proper cross-examination. In the absence of any thing more than is shown in the briefs, we must presume that the court below ruled correctly.

Nor can we say that the court erred in admitting testimony as to the cost of delivering piling along the line of road. Appellees contended that appellant had hindered and delayed them in the prosecution of the work; and had wrongfully taken the work out of their control, and completed it at a reckless and extravagant cost, and charged them with it. As bearing upon that issue, it was competent for them to show the reasonable cost of the work.

We do not think that it would be profitable to extend this opinion farther upon the several causes assigned for a new trial, all of which we have examined. In our examination of the record, assisted by the arguments of counsel, we have discovered no error which would justify a reversal of the judgment. Judgment affirmed, at appellant's costs.

Construction Contract-Interpretation. Under a contract for the construction of a railroad, by which payments equal to eighty-five per cent of the contract value of the work to be done were to become due and payable monthly, and fifteen per cent of the contract value of the work done each month was to be retained by the company, and to be paid within ninety days after the entire completion of the work, although the contract is entire, each separate monthly payment, as it becomes due, constitutes a separate demand (see Union R. Co. v. Traube, 59 Mo. 363), for the recovery of which an action can be maintained; and in the event of the non-payment of the retained percentage, an action may likewise be maintained for its recovery as a separate and distinct demand, and such retained percentage may be assigned independ ently of the other sums becoming due under the contract. Adler v. Kansas City, S. & M. R. Co., 92 Mo. 242.

Assignment of Part of Price-Sufficiency of Notice. - The S. & M. R. Co. was incorporated under the laws of Arkansas, and the K. C., S. & M. R. Co. was incorporated under the laws of Missouri. Both corporations were organized as a part of the same enterprise and were under the same manage ment; the same persons holding the chief offices in both, and the general offices of the company being kept together. A contractor for the construction of part of the road of the S. & M. R. Co., by a letter addressed to the president of the two companies as "Pres't and manager K. C., S. & M. R. Co.," assigned certain sums retained by the company under the contract.