5 Rob. 179 | La. | 1843
The plaintiff represents, that he and one Theodore Durel contracted with the defendant, to erect a dwelling house of brick, and some out-houses, according to a plan prepared by an architect, for which they were to pay $4350, at certain periods. The house was to be completed during the month of May, 1840. The petition alleges, that the house was not completed in the month of May, 1840 ; that the work done by the defendant was not executed in a workmanlike manner; that the plaintiff had been compelled to employ other workmen to complete it, at an expense of $500, exceeding the contract price ; ahd that the defendant had received more than the work executed by him was worth. The plaintiff further represents, that notwithstanding these violations of his engagements, the defendant has had the contract in relation to the erection of the buildings recorded in the office of the Register of Mortgages, thereby creating a lien on the premises, and refuses to release it, although he well knows that nothing is due to him. The plaintiff alleges, that he has purchased all the rights of Durel to the property, and is seriously injured by the existence of this pretended mortgage ; wherefore he prays, that the same may be cancelled and erased, and for general'relief in the premises.
The defendant admits the execution of the contract, and the recording thereof, which he avers was necessary to preserve his
Our attention is first called to the exception of the plaintiff, that the demand in reconvention ought not to be allowed, as it is not incidental to, and connected with the original demand. We think the Judge did not err, in overruling the. exception. The object of the suit was to show, that the defendant had been paid for his work, and that the contract had been discharged ; it was competent for the latter to show the contrary; and, if he could, that a balance was still owing to him. All the matters in contest arise out of the construction of the buildings on the same lot, and specified in the contracts.
The plaintiff complains of an allowance of $123 50, for an additional room and gallery to the kitchen, for weather boarding the whole, and for a window and painting. The price of the building is not unreasonable. One witness says that the weather boarding was worth $30, and another $40. The Judge below saw and heard the witnesses testify, and we cannot say that he erred in
The plaintiff further complains of the allowance of $200 for making the walls of the house twelve inches thick, instead of eight, as specified in the contract; and of $120 for making the partition walls of brick, instead of being studding, and lathed and plastered. A witness testifies to the value of these alterations in the plan, and he is not contradicted. Had the difference in cost not been so much, it would have been easy for the plaintiff to have procured some evidence on the subject. He had the house examined by ah architect, and no questions were asked him as to the difference in cost.
For the reasons stated in relation to the painting, and the window in the kitchen, we think the plaintiff bound to pay for painting the stable, for the copper guards, for the dormant windows, and the difference in value in the gallery posts.
The next ground of complaint is, that only $150 is allowed to the plaintiff, for having the house finished, after the defendant quitted working on it. The evidence does not show how much the plaintiff paid for finishing the building, which he might have shown, we suppose. He relies upon the testimony of Cazanova, an architect, who says it would cost four or five hundred dollars to finish it. This is very vague, and shows that no calculation was made of the cost, or of what was paid; and the witness subsequently says, that he^does not mean that it would cost that sum to finish it according to the plan. We, therefore, infer, that he meant it would cost that amount to complete it in the manner he supposed it ought to have been finished. The testimony does not authorize us to say that the Judge erred. The plaintiff having neglected to show what the work actually cost, must abide by the testimony as it is.
The last ground of complaint is, that the court only allowed the plaintiff rent for one month, when it ought to have allowed for
The judgment of the Commercial Court, deducting therefrom the sum of sixty-two dollars and fifty cents, is affirmed; the defendant and appellee paying the costs of the appeal.