3 S.D. 238 | S.D. | 1892
Tbe appellants, who were plaintiffs below, allege in their complaint tbe incorporation of defendant, and tbe execution between them of tbe following contract, to wit: “This agreement * * * witnesseth, that said parties of tbe first part hereby agree with parties of tbe second part to furnish brick and do all necessary brickwork on city ball, — that is, to put brick in wall according to plans and specifications furnished by W. L. Dow, — for three thousand dollars, being $10 per thousand in tbe wall, and have said brickwork completed by tbe 15th day of October. Tbe parties of tbe first part further agree to receive in payment for said brickwork city ball bonds, and hereby acknowledge tbe receipt of said city ball bonds to tbe amount of three thousand dollars.” Tbe complaint further alleges full performance by plaintiffs ; that in so doing they furnished and put into said building 368,944 brick; “that on tbe 6th day of April, 1885, tbe said defendant duly inspected, accepted, and made settlement in full for all said brickwork and said city ball with these plaintiffs, and under said contract, and agreed to pay these plaintiffs ten dollars per thousand for said 368,994 brick; that plaintiffs afterwards demanded tbe balance due them, to wit, $689.44, which defendant has failed to pay.” Tbe defendant answered, alleging full payment by delivering to plaintiffs $3,000 in city ball bonds, and setting up a counterclaim for damages on account of unskillful workmanship and defective material. Plaintiffs reply that under said contract they were to be paid $10 per thousand for brickwork, which was, at tbe time of making tbe contract, estimated by tbe architect at 300,000, and that they did not receive tbe $3,000 in bonds in full payment, and further denying tbe alleged counterclaim. Tbe case being called for trial before a jury, and a wit