3084 N9 VINDICATION OF DR. MERRITT. BEING THE ARGUMENT OF HIS COUNSEL BEFORE THE ASSEMBLY COM- MITTEE ON PUBLIC BUILDINGS AND GROUNDS, AT THE CLOSE OF THEIR INVESTIGATION OF MATTERS CONNECTED WITH THE CONSTRUCTION OF THE UNIVERSITY ^BUILDING KNOWN AS THE "COLLEGE OF LETTERS/' Mr. Chairman and Gentlemen of the Assembly Committee on Public Buildings and Grounds. Having, as counsel for Dr. Merritt, one of the Regents of the University, attended at the second part of your in- vestigation into the construction of the University building at Berkeley, known as the "College of Letters," it seems proper that I should present to you in my client's behalf, the conclusions which he claims to have been established by the testimony. Being referred by your chairman to " the newspapers ", for the charges which are to be repelled, we have directed our defence to those points upon which the attack is made by the press. They are, in general, charges of negligence on the part of the Board, and of positive fraud and corruption on the part of Dr. Merritt, in the building of the College of Letters. The Eegents, as a body, by the opening address made by ex-Governor Haight in their behalf, and the summing up made by Mr. Butterworth, as their mouthpiece, have shown very clearly how groundless are the charges made against them. They have shown that their confidence in Doctor Merritt was not ill founded; that in availing themselves of his experience, energy, and sagacity, by throwing the over- sight of the building chiefly upon him, they have done wisely, and secured far better results, than if there had been a divided responsibility; and that they have secured for the State a building better worth the money it cost, than any other public edifice in the State. In doing this, they have necessarily, to a great extent, vindicated my client; for the building is mainly the result of his sagacity in planning, his energy and care in execu- tion. It was through his arguments and representations, that the Eegents determined to erect a WOODEN BUILDING. It stands, a monument of his sound judgment; a com- modious, roomy, well arranged edifice, its halls broad, its rooms light, airy and pleasant; one-third larger than the College of Agriculture, and costing less than one- half as much. It has cost too, nearly $20,000 less than was estimated by the architect for a building three-fourths its size. The excess of the cost of the College of Agriculture, a building of brick and stone, over that of the College of Let- ters, put out at interest at eight per cent, per annum, com- pounded yearly, will erect a new building like the last named, every eight years. For forty years at least, the wooden building will be as good for use as that of brick and stone. At the end of that time both will be antiquated, and ought to be torn down and replaced by new erections. It is shown also by the evidence submitted, that, in all the matter, notwithstanding the outcry raised by " the newspapers" that "everything was left to Dr. Merritt ", and the setting forth in glaring capitals of " Dr. Merritt's imperial rule. " DE . MEEEITT HAS NOT EXCEEDED HIS POWEES in any respect. On the contrary although vested by resolu- tion of the Regents, and of the Building Committee, w r ith power to make (in conjunction with President Oilman) any changes he might see fit, he is shown to have made not one single change from the plans or specifications, without consulting with the Board, or as many of its members as he could see, and obtaining their consent. On this point there is no conflict in the testimony. Nor is there a single change thus made, which does not prove to have been judicious, upon getting out the facts. This will' be shown clearly, when I come to discuss these changes in detail. It is enough now to say that his acts in relation to the building of the College of Letters, after thorough investigation, meet with the unqualified approval of the Board of Regents under whom he acted, as being fully authorized by the authority which they gave him. Apart from any charges of mere excess of authority on his part, it has been freely charged that in the construction of the College of Letters, and indeed in the steps prelimi- nary to its construction, gross frauds were perpetrated by ray client, and that by collusion between the contractors and himself he was enriched, and the public was robbed. THESE CHARGES OF FRAUD I propose to meet squarely; and will show by the evidence, not merely that the testimony does not sustain them, but affirmatively that they are utterly false. Before discussing them in detail, there is one general view which substantially disposes of the whole matter. The charges are made in all the forms which malice could invent, from the direct accusation of fraud, to the sneaking insinuation. But they all have one aim; to persuade the community that Samuel Merritt, one of the Kegents of the State University has, through the facilities offered by his official station, stolen money from the State. And " the newspapers" to which we are referred to learn the charges made, have undertaken to specify even, the amount so stolen; one paper placing it as high as from $30,000 to $40,000 ! The most natural and direct method of ascertaining whether or not this charge is true, was of course to ascer- tain whether there was an opportunity to steal; whether more was paid for the building, than it was fairly worth. If it should appear that the building must have cost the con- tractors fully as much as the State paid them for it, it would be evident that there could have been no stealing in its erection. If they could make no money out of the job, -there could have been none to divide with Dr. Merritt. The committee recognized the correctness of this view, and received evidence at their first sessions (before Dr. Merritt or the Regents were called upon to defend them- selves) to show that the building was worth far less than its cost. Dr. Merritt recognized the correctness of this view, and by letter to the Board of Eegents invited the most searching scrutiny into his acts; binding himself to make good to the University every dollar lost by any wrongful act or omission of liis. The Eegents recognized the correctness of this view, and upon receiving Dr. Merritt's letter employed no less than six of the most competent, reliable, and well known archi- tects and builders of the city of San Francisco, to make a thorough examination of the building, and report its actual cash value. They testified before you, that they had faith- fully and carefully performed that duty and they gave the re- sult of their labors. Five of them united in their examination and in their re- port, which is made in detail. The men who make this re- port are not unknown here. Messrs. GAYNOB & WILLIAMS, architects of established reputation, have been engaged in that profession in San Francisco, for twenty-two and twenty- four years respectively. Mr. KING, a builder here ever since San Francisco was, has followed that business for forty years of his life. Messrs. DBUKY and KELLY, have been engaged in the same business in San Francisco, for eleven and twelve years respectively, exclusive of their pre- vious experience. These gentlemen have too much charac- ter at stake to be even loose or inaccurate in such a matter. They made their estimates upon mutual discussion and con- sultation. They estimate the cash coin value of the build- ing (without its equipments) as it stands to-day, at $90,630. They estimate the value of the carpenters' work at $15,000, and unanimously say that it would cost much more to build it in the ninety-nine days allowed for its erection than if the contractors had been allowed 150 or 200 days. Most of them, and of the other experts examined on that point, esti- mate the increased cost of carpenters' labor, from the short- time allowed, at twenty per cent. If we only allow ten per cent, that will add $1,500 to the cost. We were prepared and offered to show, that the contract- ors suffered a loss of $4,100 in selling the warrants which they received at par in payment for their job. Let us now compare what the contractors received for their work, with subsequent expenditures added, with the cash coin value of the building, as estimated by these ex- perts. Paid contractors in warrants $87,475 62 Less discount on warrants 4,100 00 Cash received by contractors $83,375 62 Add subsequent expenditures in finishing base- ment, etc., as testified to by Mr. Gilchrist, page 896 8,752 42 Total cost, in coin $92,128 04 Estimated value, in coin $90,630 Add ten per cent, to $15,000. Oarpentars' work, for haste 1,500 $92,130 00 Which does not seem to leave a very broad margin for stealing ! ! But here I may properly notice an error (the only one shown) into which these gentlemen appear to have fallen, inadvertently, in their estimate not an unnatural one: They estimate the wainscoting, 2,610 lineal feet at two dollars per foot at $5,220. This is shown to be a fair price for the panuelled wainscotting put up, painted, grained, and varnished. But the carpenter work, painting, grain- ing, and varnishing are in another place separately estimated, each in one item, for the Avhole building. Without these, the wainscotting is shown to be worth seventy-five cents per lineal foot. Deducting then, from the aggregate of its esti- mated value, $1.25 per foot for the 2,610 feet of wainscotting, or $3,262.50 in all, we have left $3,260, as the compensation of Power & Ough, the contractors, for their services in con- structing the building. If we allow half a dollar to the contractors (as is usual) on each day's work in the building (say 4,000) and ten dol- lars per day for Mr. Ough's personal labor (a very low figure for so excellent a builder as he is proved to be), three hun- dred and sixty dollars would remain as the profit of the con- tractors, over and above what they would have received, if putting up the building by the day. This petty sum would doubtless be swallowed up entirely by the extra expense in- curred in making the alterations testified to, after the build- ing had so far progressed, =that a part of the basement walls had to be taken down, partitions changed, etc., in order to make these changes. Another well-known architect of San Francisco, twenty- four years in the profession, (Mr. JOHN WRIGHT, of the firm of WEIGHT & SANDERS) has, at the request of the Board of Regents, made a separate and independent estimate of the value of the College of Letters. He estimates the value of of the building, as it was accepted from the con- tractors, at $77,181 95 Add sum since expended thereon 8,752 42 Makes total present value .... 85,934 37 Valuation by the other experts ... $90,630 00 Less, error in wainscotting 3,262 50 87,367 50 Leaves difference in the valuations $ 1,433 13 Of this difference about $1,000 is accounted for in the estimate for plumbing, gas-fittiifg, and steam-fitting. This work, being entirely covered up by the interior finish, of course could not be estimated with much exactness by Mr. W T right, while the others had the advantage of knowing what it actually cost the contractors. He allows only $1,550, while it is shown that Power & Ough actually paid out for these items the sum of $2,525. This leaves so small a dis- crepancy in the estimate, that it is not worth pursuing. The aggregate is made up, too, in so different a manner under the two estimates, that it is not easy to compare them throughout. As far as they can be compared, there seems to be no serious discrepancy each being higher on some points, and lower on others, as independent estimates made by capable, honest men, with no motive but to do justice would be likely to be. To illustrate the determined attempts made to poison the public mind in this matter, I will here call attention to an editorial, published in the S. F. Evening Post, of January 27th, 18/4, in which it is said of Dr. Merritt, that in the matter of the construction of the ' * College of Letters, he gave the builders an opportunity of clearing $40,000 or $50,- 000 at the expense of the noble Institution of learning, of which lie was one of the managers.'" The Chronicle of January 21st, says "from a showing made by a member of the Committee, it seems that the figuring so far in regard to the College of Letters, points to the conclusion that some $42,160 has been over-paid on the construction of the building." And this twaddle, so foolish and absurd in the light of the proof given of the real value of the building, as hardly to rise to the dignity of a libel, or even of a lie, was circu- lated throughout the State, and believed, doubtless, by thousands of people, before Dr. Merritt had opportunity to be heard. And now that he has been heard, the testimony given in his behalf, has been by newspaper reporters so per- verted, and distorted, and suppressed where most favorable to him, that even yet the reading public have not had oppor- tunity to know the facts. It has been sought, by the testimony of volunteer wit- nesses who procured themselves to be subpoenaed in the first stages of this investigation, and by others selected by one of your number, at a later stage, to show that the building is worth less than we have shown. Chief among them is J. W, Duncan, who testified that he would erect such a building for $10,000 less than its cost to the State. But, unfortunately for this gentleman's reputation for veracity, he is proved by Mr. Gilchrist's testimony to have said to him more than once, that the building is the cheap- est, at the price paid for it, of all the public buildings in the State; and further, that it could not be duplicated for the money it had cost the State ! Other persons who endeavored, in the early stages of the investigation, to convey a similar impression, were ascer- tained to be disappointed bidders for contracts, or bitter personal enemies of Dr^ Merritt; and as they made no de- tailed estimate of the cost of the building, but merely guessed at it from a general glance at the building, it is hardly worth while to detain you with a discussion of their testimony. The estimate of Messrs. Doyle, Gray, and Mahoney, de- mands more attention. They appeared on the stand like honest, well intentioned gentlemen, although it was palpable that they thought the obligation of their oath was that they should figure the value of the building as low as possible. 8 Their estimate of the value of the building as it stands, exclusive of profit to contractors, is $67,913.92. But they only allow for painting, graining, varnishing, etc., $4,300, while it is shown without contradiction by Mr. Farwell, who did the painting under the contractors, that it actually cost them between $7,000 and $8,000 for the labor and material. They allow for carpenters' labor only $9,750; being 2,437J days' work on a building one hundred and seventy feet long, about sixty-five feet wide, and four-stories high. As has been stated, the five gentlemen who made the estimate for the Eegents, allow $15,000, or 3,750 days' work for this item. In the estimate of Doyle and his colleagues the car- penter work is reckoned at only a trifle over fourteen per cent, of the whole cost of the building. According to the estimate of Messrs. Gaynor and Williams and their associates, it forms about sixteen and a half per cent, of the whole cost. Mr. Doyle and his associates also reckon the brick-work at three dollars per M less, in the wall, than the others do, and their estimate of the prices of lumber are considerably lower. I could not see that the three gentlemen were more likely to be correct than the six, on these points. They al- low only $1,000 for hauling to Berkeley, (some five miles from Oakland,) all the material used in the building, includ- ing among other items 286 M Brick; Over 350 M lumber. All the lime, cement and sand used in laying these bricks, plastering the inside of the building, and cementing the outside of the basement walls, as well as in deafening the floor. All the doors, sash, blinds, columns, pilasters, balusters, and other work manufactured and put together at the mill, etc., etc. For this hauling the six experts allowed $1, 500, and no one can doubt that the allowance is little enough. I offered, in behalf of Dr. Merritt, to put on the stand after Messrs. Doyle, Mahoney, and Gray had testified, Mr. Thomas Moffatt, a thorough carpenter and builder, (who had carefully examined the building, and was with these gentlemen during a part of their examination,) in order to point out some of the errors into which they had fallen. At the time they were sworn and sent to Berkeley, I stated to the Committee, in behalf of Dr. Merritt, that evidence had been offered by his opponents, to show the building worth less than was paid for it. The testimony of the six archi- tects and builders had been offered to rebut that evidence. If new evidence should now be offered, merely cumulative, upon that point to bolster up that first given against my client we should claim the right to rebut that also. I un- derstood the right so to do, to be conceded, yet after these three experts had been introduced to confirm the testimony first given, to the effect that the building was not worth the money paid for it, Dr. Merritt was not allowed to rebut that testimony, and we had to withdraw our witness. I cannot believe that the committee intended any unfair- ness : I presume that they were simply tired of this tedious work of investigation. But, unless thoroughly satisfied that the building is worth all it cost, they certainly did my client an injustice in thus stopping his mouth, and refusing to hear his witness. But I must admit that his testimony was not needed. Without it, the building is incontestibly proven to be well worth every dollar it has cost the State. Without further testimony, it is clearly shown that there could be no " steal- ing " about the building for the reason that there was no more than a very moderate margin, in the price paid, for the contractors' personal services. I have thus fully stated this matter, because the public minr* had, by the ex parte testimony first given, been pois- oned; and the people of the State made fully to believe that in this matter and that in paint and plaster, and stairs and windows, in porches and piazza and, in fact, all over the building by collusion between the contractors and Dr. Merritt, the State had been plundered, and the conspirators enriched. To disprove these things in detail, with such an impression existing in advance, would be a very up-hill un- dertaking. For that reason, since a twenty years' residence in our midst, extensively engaged in business, with a charac- 2 10 ter among his fellow citizens all that time, free from stain, is to count for nothing, it seemed best to show, first of all, in general, that there could have been no stealing, for the plain reason, that there was NO BOOM FOE STEALING. I may, perhaps, be excused, on so vital a point, a little repetition, by way of summary. In doing it, I adopt the estimate of the six architects and builders having shown that the estimates of the other gen- tlemen give no reason for rejecting or modifying it. Value of the building, as estimated in cash, gold coin $90,630 40 Less, error in wainscotting 3,252 50 $87,377 90 Add ten per cent, to labor, for haste in building ninety-nine days only 1,500 00 $88,877 90 Warrants paid contractors $87,475 62 Less discount.. 4,100 00 $83,375 62 Subsequent expenditures on basement 8,752 42 92,128 04 Balance for contractor's services and profits. ... $ 3,250 14 In full assurance that, by the showing made, you are already convinced, that the State has received a full equiv- alent for its money in the College of Letters, I propose now to meet, in detail, the charges made against my client, of colluding with the contractors to defraud the State, by means of departures from the contract; the alleged allow- ance of too large compensation for extra work done by them; and too small deduction from the contract prices on account of omissions or other changes from the specifications, which lessened the cost of building. To understand this matter of departures from the plans and specifications, a brief resume of the history of the build- ing is necessary. 11 It was originally proposed to erect the two Colleges of Agriculture and Letters, respectively of brick, stone, and iron. The plans and specifications for both were drawn, with that object in view, by Mr. Farquharson, a well-known architect of San Francisco. With him as architect, the College of Agriculture was begun. J. W. Duncan acting as Superintendent of Construction the labor (by compulsion of statute) being done by the day, under the eight-hour law. It is a building about three-fourths as large as the College of Letters. When the basement walls were nearly com- pleted, but before the window-caps were in, forty-eight thou- sand dollars in gold coin had been expended on the job, and the funds of the University were exhausted. At the instance of the Kegents, the statute was so amended that the work could be done by contract. The Legislature of 1871-2 liberally appropriated $300,000 for University Build- ings; contracts were given out for the completion of the College of Agriculture, and it has been finished at a total cost of $200, 000, as nearly as can be calculated exclusive of its very expensive equipments. After contract made for completion of this first Uni- versity building, and the necessary disbursements deter- mined upon for improvement of the University grounds, it was evident, that there would not be nearly enough money left at the disposal of the Regents to build the College of Letters in so expensive a style, or of so costly material. The architect, who had received some $7,000 for his ser- vices, estimated the cost of a second building, of the same style and material as the first, at $150,000! To build it in wood, with brick basement walls, he estimated would cost twenty-five per cent, less, or $112, 500. The Regents, with the College of Agriculture before their eyes, less in size and costing $200,000, feared that $150,000 would not build the second building in the same style. Dr. Merritt insisted that a good enough building of wood could be build, of the proposed dimensions, for $25,000 less than the architect's estimate which would make it cost $87,500. The Regents were very willing to erect a wooden build- 12 ing, if it could be done at that figure; and they adopted the suggestion of a wooden building, relying upon Dr. Merritt's judgment, and with the understanding that he was to give his personal attention to the construction of the building, and be measurably responsible for its being built within this estimate of its cost. Time pressed, President Oilman's zeal had inspired the Board with a strong desire to complete the College of Letters in time to commence the College year of 1873-4, at Berke- ley, and not to remain another year at their temporary quarters in Oakland. At the very meeting at which a wooden building was determined upon, Dr. Merritt was authorized by his brother Regents to order by telegraph from Puget Sound, the rough lumber needed for its erection, it being- then impossible to procure the long lengths needed either in Oakland or San Francisco. He ordered it at once. Before it arrived the Kegents had their attention called by their Secretary, (Mr. Moulder), to the statute which required them to build by contract, instead of leaving it optional with them, as they had supposed. Proposals for building the College of Letters by contract were at once invited by advertisement, and the contract was awarded to Messrs, Power & Ough, at the price of $83,750; their bid being $150 lower than that of Mr. Mayberry, the only other bidder on the whole contract. The contract was signed, May 13th, 1873, and the building was to be com- pleted by the twentieth of September, following. A vital question in this investigation is, what were the requirements of that contract ? When a wooden building was determined upon, it be- came necessary, of course, to change the plans and specifi- cations accordingly. Dr. Merritt, who took the laboring at the request of the Board, and by authority of its express resolution, applied to Mr. Farquharson to set his price for making the necessary changes. He said he should charge $2,000, and $1,000 ad- ditional, if he should superintend the construction of the building. The Doctor did not desire to get so much ' ' architect " as that into the building, and made the same application to 13 ;\ Mr. Ball, an Oakland architect, who lias testified as an expert in this case. His price was $1,000. When this was objected to, he gently reminded Dr. Merritt that he might as well pay him liberally, as the money would come out of the University funds, and not out of the Doctor's own pocket. Had the Doctor's vision not been so obtuse that he could not "see it," possibly there would have been one less witness against him ! Mr. Newsom, a very competent architect, of San Fran- cisco, was next applied to. He agreed to do the work for $300. The original plans and specifications were handed to him, with directions to make them over, with the necessary changes to suit them for ' a good, plain wooden building, " with brick walls for the basement to correspond in ex- *' ternal appearance, as nearly as may be, with the College " of Agriculture." The work was done satisfactorily, the plans and specifi- cations were handed to Doctor Merritt, who placed them in the hands of J. W. DUNCAN, the University Superintendent of construction, with orders to let no one have them with- out a written order from Doctor Merritt. This is proved; he himself does not deny it. He says he gave them to POWER & OUGH; but admits that he never received orders jroin any one so 'to do ! It is proved by Mr. Miller, who did the mill-work for the building, and was thus in constant communication with them as the work progressed, that the contractors (P. & O.) never used the original plans, but only traced copies, which they left with him, and which he produces. The contractors, in their letters deny having had the originals of either plans or specifications, and no one but Duncan pretends to have seen them in their hands. In saying he did give them to the contractors, Duncan admits a grave breach of trust on his own part His misstatements under oath upon other points to which I shall call attention, are so plainly shown by the testimony of " a cloud of wit- nesses ", that clearly no weight can be given to his declara- tions on any point. * ' False in one, false in all ". He and his fellow-conspirators insinuate that these papers 14 were destroyed by Power & Ough to conceal their fraud. We charge directly that they are suppressed by Mr. Dun- can, as a part of the conspiracy to change the government of the University, and so bring back Mr. Duncan to his fat berth, under the new regime. With these papers sup- pressed, it was easy for him to swear to any pretended re- quirements of the specifications, and to claim the existence of fraud in that such pretended requirements were not com- plied with. It seems a preconcerted thing that all the swift witnesses against Dr. Merritt should swear that the specifications for the College of Letters were the same as for the College of Agriculture, except the substitution of wooden walls for brick above the basement. The extreme improbability of this is shown by the fact that Mr. Farquharson estimated the cost of a building con- siderably smaller, to be built according to such specifica- tions, at $112,500; and when did an architect ever over esti- mate the cost of a building ! The only two bids made for constructing the building, as an entirety, went below $84,000. Is it conceivable that these bids could be for the erection of a building estimated by so experienced an architect as Mr. Farquharson, to cost $28,000 more? But if we bear in mind the disgust of the Regents, and especially of Dr. Merritt, at the throwing away of money in the College of Agriculture upon laurel-wood newell-posts stuck in wherever there was a chance for one, upon carving, scroll-work, upon wainscotting "glued together, making " panels from eleven to eighteen inches from centers, with " convex corners, and raised or lipped mouldings broke " around them, and also glued on, and four rosettes in the " corner of each pannel, together with heavy cap and base ' ' mouldings, and finishes to correspond, and turned termi- " nal blocks at the openings, to receive the lap-finish, all " smoothed and cleaned up ", &c., &c., we shall understand why Mr. Newsome's directions were to draw specifications for a plain wooden building, and why the finish of the College of Letters on the inside is less elaborate and less expensive than that in the College of Agriculture, without 15 having to conjure up any fraud in the matter. The evidence shows clearly that it was not intended to finish the new building as expensively on the inside as the first building was finished. The object was to get a good, but cheap build- ing. And it is in testimony that the object sought for by Dr. Merritt in many of the changes from the original plan, was to give more room without additional expense. How well he succeeded, let those judge, who have visited the large, light, airy rooms, and broad halls of the College of Letters, and have contrasted that building with the College of Agriculture. The only testimony which goes to show that the inside finish of the two buif dings was to be the same in style, is based upon mere recollection, after an interval or nearly a year. Mr. Mayberry, who put in a bid against Power & Ongh, says the finish was to be the same, and in response to Mr. Ten-ill's leading questions gives, and pretends to give all the minutice, how many nails to a lath, and how many to a flooring board, how the panels and mouldings of the wainscot were required to be; but he cannot tell how many houses he has built within the last two years ! A memory so remarkably retentive as to these trivial details, and so sieve-like on much larger matters, is, to say the least, sub- ject to suspicion. And where its possessor was a disap- pointed bidder, and shows a very malignant temper towards the contractors and Dr. Merritt, his statements should cer- tainly be taken with some allowance. Messrs. Wolf and Ball, who assume to appraise the vari- ations from the specifications, admit that they never saw either plans or specifications, nor did Messrs. Doyle, Gray & Mahoney. The whole assumption that the interior finish of the two buildings was to be alike, rests upon the testi- mony of Duncan, whose testimony in other matters is proved to be false, and that of Mayberry, who sought the con- tract, did not get it, and believed that he was cheated out of it by the man against whom he testifies. One little circumstance shows the unreliable nature of mere recollection on such matters. Both these witnesses and Farquharson the architect swore plumply, that the wain- scotting of the College of Agriculture was mortised and 16 tennoned; and one of your own number stated the same thing during one of your sessions. It was assumed that the same style of work was called for in the College of Letters, and the extra expense of the mortising and tennoning was shown to be fifty cents per foot. Yet, in the face of these positive statements, it is proved that the wainscotting in the College of Agriculture is not mortised and tennoned, and the fact had to be conceded. Mr. Farquharson then swore positively that the specifica- tions for the College of Agriculture called for the wainscot to be mortised and tennoned. He was requested to exam- ine the specifications, did so, and had to admit that his recollection was erroneous. . So much for these men who are willing to swear away the reputation of honest men, on their recollection of the con- tents of documents after the lapse of nearly a year, since their inspection. This one item makes a difference of over thirteen hundred dollars ! I assume then that it is not proved, nor is there reason to believe, that the specifications drawn by Mr. Newsome for the College of Letters, called for the same inside finish as that in the College of Agriculture. And this sweeps away at one breath the monstrous estimates made by Messrs, Wolf, Ball, and Mayberry, of the lessened value of the building by reason of alleged departures from the specifica- tions, as well as much of the estimate similarly made by Messrs. Doyle, Gray and Mahoney. Let us now examine in detail the OMISSIONS AND SUBSTITUTIONS of which so much has been said. It seems to be assumed that no allowance was made by the contractors for the mat- ters omitted, which were called for by the specifications, but that these omissions had been concealed and were only just now discovered through this investigation ! No allusion is made to the fact, that the sum of eleven thousand five hundred and thirty-two dollars was allowed by the contractors for these very omissions and changes favorable to them. I will show by the testimony of the very witness brought to testify against my client, that this amount very nearly covers all the 17 changes made, even admitting that the inside finish of the two buildings was to be the same. CHANGES AUTHORIZED BY DE. MEEEITT. The changes ordered by Dr. Merritt with the approval of President Gilman, and by him reported to the Board of Regents, which lessen the expense, are as follows : Four Iron Girders omitted; the floor timbers being in- dividually trussed and a wooden girder held in place by an inverted truss of iron rods, being substituted. Frear Stone Caps and Sills omitted from basement win- dows, because they could not be obtained in time. Brick arches were substituted for the caps, and Redwood sills for the Frear stone. Two-coat Plastering was substituted for three-coat; the object being to save enough thus to get the wing chambers of the Mansard finished (originally planned not to be finish- ed), without any addition to the aggregate cost of the plastering. Some of the Cornice was omitted from the main halls for the same reason. One coat of paint and two of sand were omitted from the outside, because it was believed to be absolutely better to put on only three coats of paint, than to put on four coats of paint and two of sand in so short a time on a new building. All the experts agree, that if four coats of paint and two of sand had been put on in the short time allowed, it would have blistered and peeled badly, and at this time would not be in so good a condition as it is now in. The platform in Prof. Le Conte's room was omitted, be- cause the Professor was not then ready to say how he wished it arranged. The columns and balustrade for the same room were got out by the contractors and turned over to the Uni- versity, and put up after the platform was built. Eedwood was substituted for White Cedar in the interior finish, because seasoned cedar could not then be found in m arket. Galvanized Iron Conductors (not Tin as falsely stated by one witness) were substituted for Cast-iron, as being more suitable for a wooden building. 3 18 For the same reason, and for the sake of economy, a Wooden balustrade or cresting was substituted for Iron, on the deck of the roof. Black Walnut was substituted for Laurel in the stair- balustrade, as being cheaper, and quite as good. NO OTHEE CHANGES AUTHOKIZED. Dr. Merritt testifies that he knew of no other deviations from the specifications or plans, making the building less expensive. He neither ordered nor consented to any other. As these could not amount to more than $4,000 to $5,000 at the outside, he considered the balance of the $11,532 allow- ed by the contractors for " saving by alterations ordered by "the Building Committee and contributions to the Univer- ''sity by the contractors," as coming under the latter head; a contribution to the University, by the contractors, of their profits over and above reasonable compensation for their services, according to their original verbal agreement with him to that effect made when they signed the contract. He never examined the specifications. He deemed the architect who drew them far more competent than himself to make them what they should be, after being told in general terms what was wanted. Nor did he, nor could he personally watch the details of the construction of the building; for he was not a carpenter, plumber, painter, mason or stair-builder. DUNCAN EMPLOYED TO WATCH CONTRACTORS. Mr. J. W. Duncan, an experienced builder, was employ- ed by the Regents at $200 per month as their Superintend- ent of Construction, for no other purpose than to see to it that the two Colleges of Agriculture and Letters were built according to the specifications, both as to workmanship and material. Dr. Merritt's instructions to Duncan were not to stop the contractors, if he should see anything wrong in either re- spect, for time pressed, but to notify him, Dr. Merritt, at once of any change made without his authority. DUNCAN GAVE NO NOTICE OF OTHER CHANGES. Duncan admits that he never did notify Dr. Merritt that 19 the contractors made one single deviation from the plans or specifications, other than those which Dr. Merritt has speci- fied in his report, and that Dr. Merritt never notified him that any other change for the cheaper, was consented to by the Building Committee or himself. If the other alleged changes were made without authority of Dr, Merritt or the Building Committee, as Duncan now says, and if Mr. Duncan (as he now testifies) knew that such changes were being made, whereby the contractors unjustly took from the State several thousand dollars then Mr. Duncan was false to his trust, and a traitor to his employ- ers. As regards his own reputation, it does not matter much whether he is to be viewed in that light, or as a per- jured witness. One or the other he certainly is. In any event, Dr. Merritt is entirely exonerated from blame. He depended, as he had a right to do, upon Mr. Duncan who had in his possession the plans and specifica- tions, and was hired to be the watch-dog of the Kegents, to watch the actions of the contractors, and see that they ful- filled their contract in all respects. It was not the business of Dr. MerriU, or of any one of the Regents, to climb up among the roof-timbers and ascertain whether the "jack-rafters" had one nail or two; or to notice ivhether the laths had four nails each, or Jive. Mr. Duncan was hired for that very purpose. There is an old saying, that a man ' ' should not keep a dog and bark himself." NO PROFIT TO CONTRACTORS BY CHANGES. But we shall find on examination, that the allowance made by the contractors would, within a trifling sum, cover the amount saved by omissions and changes, even if it were admitted that the specifications were departed from in all the particulars charged. The difference in the expense has been greatly exaggerated. DISAGREEMENT OF WITNESSES. It is especially noteworthy, that hardly any two estimates on this matter agree, or even approach each other either as to the points of difference in the finish of the two buildings, 20 or the amount of difference in the cost made by any of the alleged departures from the specifications. One witness, or set of experts, testifies to one list of omissions and changes; another, to another. For one omis- sion, one set of experts figure one price; another estimates it at one-third as much. FIGURING BY WOLFE, BALL AND MAYBERRY. These original experts figured the omissions up to $20,000! WINDOW AND OTHER OUTSIDE FINISH. Of this, $5,460 was figured up as omitted from the out- side finish: windows, pilasters, cornice, etc. But the accidental discovery of the traced copies of the front and end elevations, produced by Mr. Miller, with his testimony on the matter, shows that the finish of the build- ing, as it stands, is almost precisely as called for; certainly not less expensive. This strikes out nearly $5,500 from their aggregate, "at one fell swoop." WAINSCOT. They estimate the wainscoting (1,790 feet) at two dollars per foot less than called for by the specifications assuming them to call for the same as in the College of Agriculture. Messrs. Doyle, Gray and Mahoney (the experts employed by the committee) allow for this, one dollar per foot. As these last experts supposed the wainscoting, in the College of Agriculture, to be mortised and tenoned, when they made their comparison, their estimate must be still farther re- duced half a dollar per foot: for it is proved, as I have shown, that the wainscotting in the last-named building was not mortised and tenoned, and that it is worth half a dollar less per foot than if so made. This strikes off $2,662.50 additional from the $20,000. The Wolfe crowd estimate the difference in HARDWARE At $2,500, and Mr. Wolfe's letter says they might just as well put it at $3,500! I quite agree with him that there is no limit to his power of "marking up," when deemed necessary, in order to injure Dr. Merritt. 21 But the experts employed by the committee, cut this item clown to $1,270 a reduction of $1,230. Mr. Wolfe and his associates say the stairs are worth $4,667 less than if built as called for, like those in the Col- lege of Agriculture. Mr. Duncan estimates this difference at $500. But as he has forfeited all claim to be believed, even when he speaks the truth, we will adopt the estimate of Mr. Blair, who built the stairs for Power & Ough, and who put in a bid, originally, to build the stairs as specified. He figures the difference at $3,500 a reduction of $1,167. Allowing the balance of the estimate of Wolfe and others to be correct, we have now established, by irrefragable evi- dence, that we should DEDUCT FROM THEIR ESTIMATE $10,519 50 For these four items alone; or more than half the $20,000 sworn to by them as pocketed by the contractors, by dis- regarding the specifications. It can hardly be worth while to examine farther an esti- mate so recklessly made. Msssrs. DOYLE, MAHONEY, and GRAY, estimate the omis- sions and substitutions of cheaper work and material at $12,112.87; presuming that the inside finish was to be like that in the other building, But they make the difference in the wainscoting half a dollar per foot (or $1,037.50) too great, as just now shown by me. They estimate the difference in flooring at least five hun- dred dollars higher than the testimony of other witnesses, on a thorough cross-examination, shows it to be. They figure the difference in the stairs, etc., over $1,500 higher than does Mr. Blair, who built them. The difference of $90, estimated in nails, is more than offset by those used in spiking on scantling to truss the beams in the South wing, of which they admit they were not aware. The estimate for omitting the " furring down cove ceiling, $150, " should not be allowed, for it certainly cost more to fur on the studs, than it would to fur on the rough inside boarding, had that been put on. The other items 22 The Plain Wainscoting $4500 126 windows in first, second, and attic 378 00 22 single doors 110 00 11 pair double doors 88 00 1000 feet hip and deck drapery 150 00 We were not allowed to cross-examine the witnesses upon, and consequently we cannot know Avhether the estimate thereon is well founded, or even what the items mean. There is certainly no evidence in the case showing any omission or change for the cheaper, in any of these matters. Lest there should be any lingering suspicion left, that there were changes and omissions which put money into the contractors' pocket, we will now submit a table of all the changes claimed to have been made from the plans and specifications, which made the building cheaper, with the value of each set opposite; that value being generally esti- mated by witnesses called to testify against Dr. Merritt, and the Kegents : ALLEGED CHANGES FOR THE CHEAPER. IRON GIRDERS, omitted $1,700 00 CAPS and SILLS to Basement windows. Brick arches and Redwood sills substituted for Frear Stone, (Perine's testimony), 40 windows at $9 each 360 00 Two COAT PLASTERING, substituted for three coat, 7.165 yds. (estimated by Doyle and others) at 10 cts. (Duncan's estimate) 716 50 CORNICE in MAIN LOWER HALLS omitted : 312 feet, at 50 cts 156 00 ONE COAT OF PAINT and Two OF SAND omitted on outside: say 2,200 yds., estimated by Farwell at 30 cts.. 660 00 PLATFORM IN PROF. LE CONTE'S ROOM, say $ 100 00 (For the difference between Redwood and Cedar for inside finish, I allow nothing. The cedar would cost $20 per M. more, and some more labor in working. But this is fully offset by the extra ex- pense of painting and graining the redwood; as the cedar would only be varnished.) GALVANIZED CONDUCTORS, for cast iron: say 75 00 23 WOODEN CRESTING on deck of roof, substituted for iron ; not over . . 500 00 $4,267 50 These are all the departures from the specifications or- dered or consented to by Dr. Merritt (as the testimony shows), or which he knew to be charged to exist, until this investigation. He has no reason to believe, and does not believe that other changes were made. But that the committee may see how great a bug-bear has been spirited up by reckless witnesses and sensational head- ings in newspaper reports, I will add the other alleged changes, with the amount of each, similarly estimated. STAIRS, as estimated by Mr. Blair $ 3,500 00 DIFFERENCE in FLOORING (at Doyle & Go's estimate, evidenly $500, too high) 1,521 87 DIFFERENCE in OUTSIDE SHEATING, est. by same . . 362 00 " HARDWARE, " " " .. 1,27000 " NAILS, $90, (this I omit, for rea- sons already given.) ROUGH BOARDING in ATTIC, (est. by Doyle & Co.) 150 00 FURRING DOWN COVE CEILING, $150, (omitted for reasons already given.) DIFFERENCE in WAINSCOTING 2,075 FEET, (est. by Doyle & Co., $2,075,) deduct 50 cts, per foot, for reasons heretofore given 1,037 50 PLAIN WAINSCOTING, (Doyle & Co.) 45 00 126 WINDOWS @ $3 378 00 22 SINGLE DOORS @ $5 110 00 11 DOUBLE DOORS @ $8 88 00 1000 FEET HIP and DECK DRAPERY. 150 00 $8,612 37 Add to this the changes for the cheaper ordered by Dr. Merritt : $4,267 50 Total of omissions, &c $12,870 87 The amount allowed by the contractors for omis- sions and contribution to University, as be- fore stated, is.. . 11,532 00 DISCREPANCY $ 1,347 87 24 This, mind you, is upon the assumption that the specifi- cations called for inside finish like that in the College of Agriculture. The $20,000, $30,000, and $40,000 bubble, in being picked, shrinks down to $1,347.87. THE "EXTRAS." Under the clause in the contract authorizing changes to be made bj the Building Committee in the plans and style of construction, as the building progressed, other altera- tions were made at the suggestion of Doctor Merritt and President Gilman, approved in most cases ]by the Building Committee and the active Eegents, before being carried out. I believe there is not one of them but is universally admit- ted to have been wisely done. LENGTHENING THE HALLS. As originally planned by Mr. Farquharson, the stairway in each hall would have been very much in the way of the en- trance in the east side of the building as is the case with the College of Agriculture. In that building, wide doors directly facing the steps leading up to the porch, are ren- dered impracticable by the staircase being in the way; and the subterfuge had to be adopted of two pairs (apparently) of double doors, one pair of which are dummies. To enter the hall, from the outside steps, one has to bear away to the left as he crosses the outside porch, and "sneak" in, as it were, through the narrow doorway, on one side of the hall. By lengthening the halls four feet on each side of the building, the builders were enabled to place broad doors in the centre of the end of the halls, directly in front of the outside steps leading up to the portico, He who doubts the wisdom of this change, is invited to compare the two build- ings in this respect. Before Dr. Merritt could get the consent of the Eegents to this change, the basement walls were already up, and, of course, there was extra expense, for that reason, in making the alteration. For thus extending these halls four feet at each end (equal to adding to the four towers, each, a space eighteen feet wide, four feet deep, and seventy feet high say 5,040 cubic feet with three floors and four ceilings, each, 25 four by eighteen feet, added on each tower) the contractors charged and received $2,000 about ten cents per cubic foot. Wolfe and colleagues estimated this at nine hundred and twenty dollars; about four and a half cents per cubic foot ! The value of the whole building, as estimated by Messrs. Gaynor & Williams, Wright, King and others, amounts to about fifteen cents per cubic foot. As we were not allowed by the committee to thoroughly cross-examine their experts (Doyle and others) on the items which made up the cost of this extension, I cannot present the matter in detail; but I call the committee's attention to the fact that Mr. Doyle estimates (p. 793) the cost of the mere brick work in the basement wall necessitated thereby, at $430; nearly half the whole amount ($920) allowed by Wolfe & Co., for the extension through three stories, base- ment and tower ! WIDENING THE PORCHES. The four porticoes, or porches, were originally planned like those of the College of Agriculture. Having seen the mean appearance of these last, the Building Committee de- termined to increase the width of those on the new building, from twelve feet to twenty. Those w r ho have seen the two buildings need no argument to convince them of the proprie- ty of this change. For this work the contractors charged and received $600. I admit that it is a rather unusual trait in contractors; but the evidence shows conclusively, that they did not charge half enough for this job ! Rather than believe that the con- tractors would intentionally do a thing which would so dis- credit them among those of their own profession, as to charge too little for an "extra," I must assume that they made a gross mistake in the matter. Even Doyle & Co., say this was worth at least $800. But their estimate of mill work is very much below that of Mr. Miller, a mill-man of over a dozen years' experience here, who actually did that work for the contractors. Sub- stituting his estimate of the mill-work for theirs, the cost of widening the four porches, comes fully up to his estimate 4 26 made with great care, thoroughness, and accuracy of detail; over $1,400. " EXPERTS" WOLFE, BELL, AND MAYBEBBY. After examining his estimate and that of Doyle and Ma- honey, on this item, the estimate of Wolfe, Ball, and May- berry, on the same point becomes simply ludicrous. They allow one hundred and sixty dollars for the job!! The testimony of Wolfe & Co., the committee's experts, shows that the eight extra columns necessitated by the change, would alone cost more than that sum; -and that the extra brick work in the basement wall used in the widening of the four porches, must have cost over two hundred dollars ! The extra mill-work alone called for by the change, (includ- ing the columns) Miller swears is worth fully one thousand dollars. Mr. Mayberry had opportunity to correct his testimony on this point, being interrogated thereon, when re-called. Buc with dogged obstinacy and malignity he stuck to his first statement, and has thereby destroyed whatever credi- bility he might otherwise have claimed for his entire testi- mony. After this exhibition of their incompetency, or dishon- esty (whichever it may be) in deliberately estimating this item at less than one-eighth its real value, it cannot be necessary to say, that the evidence of Messrs. Wolfe, Ball, and Mayberry, on all these matters must be thrown away. It is not necessary to decide whether they show themselves in the matter, to be fools, or knaves, or both. In either case their testimony can have no weight. THE PIAZZA on the west front of the building was an after-thought. It adds greatly to the beauty of the edifice, and is a great con- venience by way of furnishing a direct communication on three floors, between the two halts, without going through the intermediate rooms. When first suggested, the contrac- tors were asked its probable cost, and (after getting from Mr. Miller an estimate for the mill-work) they reported it as about $1,500. They charged and received $1,575. 27 Doyle & Co., estimate it at $1,041; but they only allow S'553 for mill-work, wliile Miller, wlio did it, says it is worth $940. He says he estimated it carefully for the contractors, when the Regents asked them its probable cost, at that figure, and that he is sure the estimate is not too high. With this correction, the Doyle estimate would come up to $1,428, only $147, below the amount paid the contractors. On cross-examination, Mr. Mahoney, one of the makers of the Doyle estimate, confessed he had allowed nearly 1,500 feet too little for the floor timbers and girders, and that there might be other inaccuracies, as he had made his figures very late, the night previous. So I think we may safely accept the contractor's bill, backed by Miller's careful figures, as correct on the value of the piazza. For the FOUK DOORS OPENING ON THE PIAZZA The contractors received $400. The Doyle & Co. estimate is $340 for these. Mr. Miller swears that these doors, with frames, tran- soms, etc., making the mill work complete, were worth $330, delivered on the spot, with the necessary locks, hinges, and other hardware. The labor of fitting same, and putting up the work he says could not be less than ten dollars for each door. Mr. Farwell, who did the work, says it was worth half a dollar per yard to paint, grain and varnish these doors and casings, reckonning the molded casings at double their measured width. This made each opening 14 feet high, and 6 feet wide, painter's measure, or over nine square yards on each side, amounting in all to 18 yards, worth nine dollars. We have then 4 doors, casings, hardware, glass transoms, etc. . . $330 00 Carpenters' work 40 00 Painting . 36 00 An aggregate of $406 00 We invite a close scrutiny of these figures. Wolfe, Ball, and Mayberry allowed for putting in these doors, etc., $240; $90 less than the bare material and mill work cost ! 28 It cannot be necessary to go through all the details of the "extras" in this argument, which is already too long; Mr. Miller is the only witness who has presented to the Com- mittee careful figures, made in detail upon them, except the painting; upon that Mr. Farwell has given you the details. The other witnesses have presented to you their conclusions in a lump, without their figures in detail. Where allowed to cross-question, we showed important errors in their figures, and were soon cut short in our cross-examination. Messrs. Miller and Farwell are the men who did most of the work, except the carpenters' labor, on these extras. Their testimony is not sought to be impeached; it is well known to be unimpeachable . Upon the matters already examined, as well as all the extra doors, blinds, shutters, etc., etc., their testimony fully sustains the charges made by the contractors. The large sliding doors in the President's room, for which $146 is al- lowed by Doyle & Co,, are shown by their careful detailed estimates to have cost, as they stand, at least $175, including frames, architraves,