17 La. Ann. 201 | La. | 1865
Petitioner alleges that the defendant employed him as his agent to superintend the building of the steamer Bella Donna, to purchase materials and supplies for the said boat; that no amount was specified as the value of services, which are well worth 1300 per month, commencing- 1st December, 1863, to 21st March, 1864, making $1,100, for which ho prays judgment.
The defendant answered by a general denial, and that plaintiff, representing himself to be skillful in such matters, engaged himself to respondent to superintend certain repairs of the steamer Bella Donna, about November, 1863, and that, in violation of his agreement, the plaintiff conducted and superintended said repairs so unsldllfully and extravagantly, that the said repairs cost upwards of $40,000, instead of $22,000, as he had promised, and that he has suffered damages to the amount of $32,000, which he pleads in reconvention, and for which he prays judgment.
It was admitted on trial that plaintiff was employed by defendant, as set forth in plaintiff’s petition, and that his services were worth the sum of $300 per month, if he faithfully performed the duties of his profession and employment.
After the case had been tried, and was about being submitted to the jury, the defendant took a bill of exceptions to that portion of the charge of the court which states: “that, if the defendant accepted and used, without objection, the steamboat Bella Donna, when she came from the hands of the plaintiff, he cannot recover, in reconvention, damages for failure of plaintiff to perform his duty in the premises.”
The jury found a verdict for plaintiff for $1,100 ; and the court, after having overruled a motion for a new trial, gave judgment accordingly, and the defendant took this appeal.
We are of opinion that our learned brother below erred in his charge excepted to. If the plaintiff performed his contract unskillfully, and in such a manner as to cause damages to the defendant, it was an active violation of the contract; and the receiving and using of the steamboat by defendant cannot be considered as a discharge of plaintiff’s liability and responsibility to the defendant. C. C. Art. 1926. Lobdell v. Parker, 3 L, 331. Morton v. Pollard, 9 L. 174. Overton v. Simon, 10 A. 685. Miller v. Stewart, 12 A. 170. Nicholson v. Desobry, 14 A. 81.
It is therefore ordered, adjudged and decreed, that the verdict of the jury be set aside, and that the judgment appealed from be annulled and avoided, and the case remanded, to be proceeded in according to law; the appellee to pay the costs-of appeal. ,