Dyer v. Seals

| La. | Aug 15, 1834

Bullard, J.,

delivered the opinion of the court.

The appellant relies for a reversal of the judgment on five points, filed in the record.

The three first may be considered together, as presenting to the court the question, whether a workman who sues on a specific contract for work and labor, can give evidence of the work really done, and recover its value, although the job was not completed according to contract, when the employer received the work in ah unfinished state, and when sued on the contract demands damages in reconvention, for delay in doing the work and for its not having been done in a workmanlike manner-.

plea in reconvention anthonses the plaintiff to give vaiueldCof6 the 1one for to repel the de.^"agaiXhim fornon-performatice of lus contract. amX foundby the jury was not liquidated at the inception of the not\iiowab?e by doe’s not^aiiow interest onuniiquidated sums. Where the mentAllows1 mqSdated 811 sum" the appellee cannot avoid a reversal of the paymentof costs') Supreme "court a remittitur of the interest so allowed.

This case is similar, in its essential features, to that of Loreau vs. Declouet, 3 La. Reports, 1; in which this court held, that in commutation contracts, when the reciprocal obligations are to be performed at the same time or one immediately • after the other, if one party goes on to perforin his part but does not complete it, as agreed on, and the other receives the thing contracted for, he is bound to pay the value ja the condition it is delivered,

. The plea in reconvention, authorised the plain tin to give m evidence the value of the work done, to repel the demand for damages against him for the non-performance of his contract. o o r The jury tried the whole case, and after allowing to the defendant about two hundred dollars, rendered a verdict in favor of the plaintiff, for the balance, ^ y

The fourth point made by the counsel for the appellant, is that the verdict of the jury on the plea of reconvention, is contrary to law and evidence. It is urged, that a greater amount of damages was proved, than has been allowed by the jury. One witness, it is true, stated as his opinion that ■ ^ defendant had suffered greater damage in the loss of an ° early market, and the fall of pnce. But the jury was not bound to adopt the opinion of the witness, which may have been formed on taking into view remote consequences which could not }iave. entered into the contemplation of the parties when L 1 the contract was made. The jury took into view the limited amount of crop to be ginned, and the delay which occurred, an(^ formed their opinion according to the facts proved on the trial. We are not enabled to say, that their verdict has done evj¿|en(. injustice to the defendant.

The last point appears to us well taken. The amount found by the jury was not liquidated at the inception of the su'b and interest is not by law to be allowed on unliquidated sums. The appellee endeavors to obviate this objection, by x A J J filing in this court a remittitur as to the interest allowed by the judgment. We are of opinion, that this cannot be done. This court must pronounce on the judgment as it was rendered, independently of any modification of it by one of the ,. .. ,, , parties pending the appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff recover of the defendant and appellant the sum of three hundred and fifty-six dollar's, with costs in the District Court; those of the appeal to be paid by the plaintiff and appellee.