5 D.C. 533 (C.C.D.C. 1838), 5112, Fresh v. Gilson

• Docket Nº: 5112[1]
• Citation: 5 D.C. 533, 9 F.Cas. 810
• Party Name: FRESH v. GILSON.
• Attorney: Brent & Brent, for plaintiff. Mr. Bradley, for defendants.
• Judge Panel: CRANCH, Chief Judge CRANCH, Chief Judge

Page 533

5 D.C. 533 (C.C.D.C. 1838)

9 F.Cas. 810

FRESH

v.

GILSON.

No. 5112 ^[1]

Circuit Court, District of Columbia.

Nov. 1838. ^[2]

The defendants [Riah Gilson and others] had a contract with the Chesapeake and Ohio Canal Company for making culvert No. 116, in section No. 150; and the plaintiff [W. H. Fresh], by a written contract under his seal and that of Gilson, one of the defendants, undertook to do the work, by the 4th of July, 1833, at a less price as to part of the work, and at the contract price as to the residue. This contract was given in evidence by the plaintiff. The defendants gave evidence tending to show that, according to a stipulation in that contract, Midler, one of the defendants, (not Gilson, who had signed and sealed the contract,) not being satisfied with the progress of the work, some time in July, 1833, came and declared the plaintiff's contract to be abandoned, and proceeded to finish the work before the 21st of December, 1833. The defendants attempted to prove the amount which they had been obliged to pay to complete the contract; the vouchers produced were disputed at every step, and the plaintiff took four bills of exception to the admission of evidence.

Brent & Brent, for plaintiff.

Mr. Bradley, for defendants.

THE COURT, at the motion of Mr. Bradley, the defendants' counsel, instructed the jury, that if they should find from the evidence that there was an agreement under seal between the plaintiff and the defendants for the execution of the work and labor for which this action is brought, the plaintiff is not entitled to recover.

CRANCH, Chief Judge, would have added, ‘ unless they should also be satisfied by the evidence that the plaintiff had performed the work according to his agreement.’

THE COURT also instructed the jury, at the instance of the defendants' counsel, that if they should find from the evidence, that the plaintiff performed the work and labor for which this action is brought, under a sealed agreement between the plaintiff and Riah Gilson, the plaintiff is not entitled to recover in this action.

CRANCH, Chief Judge, would have added, ‘ unless they should be satisfied by the evidence, that the plaintiff had done the work according to the written contract; and that the contract was made by Gilson for the benefit of all the defendants and with their consent, and that they recognized it.’

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