Fairchild

This is an appeal by defendant from a judgment rendered in favor of plaintiffs in an action brought to recover for services performed under a written contract, consisting of laying track in the construction of a railroad; also to recover damages alleged to have been caused by defendant in delaying the performance of the work. The appeal is upon the judgment-roll.

On the eleventh day of June, 1907, the plaintiff Fairchild entered into a written agreement with the defendant, wherein Fairchild agreed to lay the first section of a certain broad gauge railroad, being approximately ten and one-half miles of track and switches, for which he was to receive $475 per mile. It was also agreed that for any work other than track-laying which might be done by Fairchild he should be paid therefor on the basis of cost plus ten per cent.

Subsequent to the date of the contract and prior to the commencement of this action Fairchild made an assignment of the contract to his coplaintiff Park! i-Howard Company, retaining, however, a one-half interest in all the profits that might accrue under the contract, and also agreeing to pay one-half of all losses that might arise in doing the work mentioned in…