This is аn appeal from a judgment on a sworn acсount. Appellee performed services consisting of bulldozing, clearing property and widening a сreek bed belonging to Appellant and furnished materials necessary for the project. Appellee gave Appellant an invoice and finаl statement dated June 25,1978, for $23,915.16. On December 28, Appellant paid Appellee $7,000. On December 10, 1979, Appellee filed this suit seeking the balance of the final bill. Appellant, in her Amended Original Answer, denied the claim and contended that Appellee had contracted to do the job for $12,000 and the job had not been completed. The jury found that Appellant owed Appellee a balance of $16,915.60 and that Appellant had not represented its charges would not exceed $12,000.00. Judgment was entered and Apрellant perfected her appeal. We affirm.
Appellant contends that the jury’s answers to the special issues are so against the great wеight and preponderance of the evidence as to be manifestly unjust. In determining whether the verdict of the jury is against the great weight and preponderance of the evidence, we must weigh and consider all of the evidence.
In re King’s Estate,
*725
Appellee, by cross-point, prays for damages pursuant to Tex.R.Civ.P. 438, providing for the assessment of a 10% penalty against appellant should this court find that the appeal has been tаken for delay and without sufficient cause. In view of thе state of the record this case is well within the “no sufficient cause” requirement. We are willing to say that this сase also meets the “delay” requirement of Rulе 438. However, if Rule 438 does not require us to assess damаges for delay, we have discretion under Tex.R.Civ.P. 435 to аssess damages when “the only questions raised on an unsuсcessful appeal are well settled and thе appellee’s circumstances are such that statutory interest on the judgment is not adequate сompensation for delay.”
Charter Oak Fire Insurance Company v. Adams,
Appellant’s point of error is overruled and the judgment of the court below is affirmеd, with damages for delay of 10% of the original amount of the judgment ($16,-915.60) or $1691.56. Judgment interest will accrue against the оriginal amount of the judgment from the date of judgment until the dаte this opinion is handed down. Hereafter, judgment interest will accrue against the original judgment amount and the penalty assessed here, or $18,607.16.