McConnell

Plaintiff engaged himself to build for defendant a tunnel “in a good, substantial, and workmanlike manner to completion,” as far as the defendant might direct; “it being the intention to construct the said tunnel for the distance, of about 1,200 feet to the artesian wells, unless water in sufficient quantities is encountered before reaching that point.” It was stipulated “that said tunnel shall be constructed on the grades and according to the specifications of the engineers of the party of the second part in charge of the work. The tunnel will be timbered in a thoroughly workmanlike and practical manner so as to protect against outward and also inward pressure.” The defendant agreed to furnish all the lumber needed and required by the plaintiff for the tunnel, the lumber to be delivered on the ground at the shafts where it was to be used. The defendant also agreed to make progress payments during the performance of the work, on the first of each and every month, of seventy-five per cent of the work completed during the previous month at the agreed rate. Work was prosecuted under this contract until some 764 feet of tunnel had been driven, the progress payments being made upon the…