
    Mt. Sterling & Spencer Turnpike Road Company v. W. B. Slocum.
    Contracts — Building Turnpike — Work Incomplete — Estimate.
    When appellee gave up Ms contract the Turnpike Company agreed to pay him the contract price for the work done and the estimate was to be made by the appellant’s engineer.
    Held: That it was the duty of the company to ascertain the amount due appellee before involving him in litigation.
    APPEAL FROM MONTGOMERY CIRCUIT COURT,
    February 18, 1872.
   Opinion by

Judge Lindsay:

The circuit court did not err 'to appellant’s prejudice in striking from the case so much of the answer as seeks to make Gibbons a party to this litigation.

It is manifest that when Slocum gave up his contract the Turnpike Company undertook and agreed to pay him for so much work as he had1 then done, at the contract rate. The estimate of the amount of such work was to be made by the company’s own engineer; it was, therefore, 'the duty of the appellant 'to ascertain the amount due to appellee, and it had no light to involve him in litigation with Gibbons in order to have determined a matter of fact which the company had agreed to have settled 'by one of its own officers.

It is not denied that the amount for which judgment was rendered in favor of Slocum was due from the company, and there is no evidence tending to show that Gibbons had any claim upon such amount.

Turner, Brock, R. Reid, for appellant.

Apperson, for appellee.

The bill of exceptions does not show what appellant expected to prove by either one of the rejected witnesses. It is, therefore, unnecessary to discuss their competency.

We perceive no error in the proceedings in the court below which will authorize a reversal.

Judgment affirmed. Gibbons having no interest in the matters involved in this controversy his appeal is dismissed.  