Rounsaville testified: Called in plaintiff and stated purpose and plan to him; told him we wanted him to order the pipe for us, and occasionally pass through the warehouse and see that the work was done right; and that we should have the benefits of best discounts given, and he agreed we should have them; knew he was in the employ of the city; told him when he had copapleted the work, would pay him for his trouble; if we failed to agree, would leave it to other parties. He ordered only part of the pipe, and employed Spencer & Company to do the work of putting it in. When the bills for the pipe came, we found the discounts were not equal to those we could and did get ourselves, and that the hands, especially Spencer, were not doing their duty; and complained to plaintiff of his failure to get us discounts and of the manner in which the hands were working. This was just before dinner-time. In the afternoon neither Wagner nor his hands came back, nor did they come back after that time. They abandoned the job of their own free will and accord. Afterwards learned that plaintiff was a partner in Spencer & Company, which firm we paid about $132 for what work they did. I never saw any plans. No pipe was put up under plaintiff’s superintendence. McGuire ordered two thirds of the pipes and put all the pipe up; plaintiff only had put down ten mains, and connections at the, rear of warehouse, for which his firm was fully paid. The putting in of the pipes was completed by McGuire im February, 1887. I think plaintiff’ asked me to give him $25 over three years after the job was completed, which I refused; this was all he claimed. I employed him.’ to superintend the work. I did not employ Spenoeit & Company. Plaintiff made no demand for arbitration before he brought suit; he never did make a demand for $100 on me. I did not pay the $25, because I did not consider I owed him anything. The testimony of two other witnesses was: On November 16th and 20th, 1886, defendants paid Spencer & Company amounts aggregating $52, and on December 14, 1886, settled with them in full by paying them $80. Wagner gave up the job in the fall of 1886, and witnesses never saw him at the warehouse any more, after the first compartment was fitted up, except when he came to collect water-rent for the city. McGuire finished the work in February, 1887, and was then paid $109.58 by the defendants, which was the balance due him for fitting and putting up the fire protections. The item of $4.00 in McGuire’s book, September 22,1887, was for payment on some repairs done in the third compartment of warehouse. The water was turned on to test the workings of the sprinklers about February 19, 1887, in- first compartment. Wagner was about the warehouse several times when the work was progressing in the1 first compartment, in the fall of 1886. The work of putting in the sprinklers in the second and third compartments was done by McGuire. The water in the first compartment was turned on in February, 1887; witness does not remember who turned it on, as the machinery for turning it on was out of sight.J. Branham and C. A. Tiiornayell, for plaintiffs in error.McHenry, Nunnally & Neel,-contra.
