jury completely disallowed the counter-claim.
From what we stated earlier in connection with the 'agreement' as to the size of the rock and from the fact that Wenger apparently was satisfied with the work at the time of its performance, we are of the opinion that the verdict of the jury was justified.
Seaboard further contends that the verdict in favor of Perry was excessive. With this, we completely disagree.
The Court, in its charge, instructed the jury that if they believed that Perry had met its burden of proof in establishing Seaboard's liability, they could find for Perry in the amount of $ 111,323.98, which was the figure submitted by Lucas or in the larger amount of $ 118,426.97, which was the figure submitted by the Worthington engineer, Curtis. The Court, in this connection, also instructed the jury that if they believed Russell, Wenger's engineer, their verdict for Perry would be in a lesser amount. In addition, the Court read to the jury a detailed written statement of the counter-claim prepared by Wenger at the Court's request. The jury was told that they could find for Wenger (exonerating Seaboard) if they decided that the counter-claim had substance.
A verdict was returned for Perry in accordance with the Lucas figures, which were smaller than Curtis'. To that extent, they made a concession to Seaboard. From all of the evidence, we feel that Lucas' testimony was competent; his methods reasonable; and his calculations substantially in accordance with accepted engineering standards. None of the engineers measured the rock in place as it had been put there by Mother Nature. We doubt that they could have done so had they so desired. All the figures were based on engineering estimates. In this light, the Lucas figures were acceptable.
Wenger next argues that the Court erred in allowing the witness, Robert L. Jamieson, the Turnpike resident engineer, to express a conclusion as to the meaning of the written contract between the parties. The item in question amounts to $ 6,000 which Wenger claims as a 'clean-up' expenditure.
The situation arose when Perry's counsel asked Jamieson if the work of Perry was completed when he inspected the job in September of 1955. Over the objection of Wenger, the witness was permitted to answer that the job was completed at the time of his inspection as far as Perry was concerned. From this Wenger argues that Jamieson was interpreting the contract; that it was an invasion of the province of the Court and jury and that it was prejudical to Wenger.
This argument, we believe, is lacking in validity. What Mr. Jamieson said was merely a repetition of something he testified to earlier in the trial without objection. At page 595, the following is transcribed:
'Q. Was there anything to be cleaned up? A. Not in the work of cleaning up under blasting or drilling.
'Q. Nothing by Perry? A. Yes, that is the main thing.
'The Court: May I ask a question?
'The Witness: Yes.
'By the Court: Q. What was cleaned up? What did you require to be cleaned? A. In the Turnpike?
'Q. Yes, on this portion of the Turnpike. A Oh, well, you had to clean up those cans, oil cans, and everything, rubbish, you could imagine during the course of the operation.
'Q. That pertained to the principal contract? A. Yes, that pertained to Mr. Worthington.
'Q. It had nothing to do -- A. With Perry.
'Q. -- with the blasting? A. No, sir.'
Mr. Jamieson, as the engineer in charge of the job for the Turnpike Commission, was well qualified to explain what was meant by 'cleaning-up.' It was his duty to determine whether the job was properly completed or not. The facts that the earlier testimony came in without objection; that others (Wilmer Wenger, Alex Fink, et al.) had testified similarly, and finally because of Jamieson's qualifications, lead this Court to conclude that no error was committed in permitting the testimony.
We are of the opinion that all parties received a full, fair and complete trial and one that was free from substantial error. The losing parties' apparent satisfaction was manifested when they expressed their satisfaction with the charge. They are not now entitled to a new trial.