
    No. 10,542.
    Maurice J. Hart vs. Emile E. Dreyfous.
    Where several experts are employed to estimate the cost ;of a building and they differ materially in their estimates of the value of materials furnished, and labor performed, the truth will in most cases be found in the lowest estimate made by one of them.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.
    
    
      Henry P. Dart for Plaintiff and Appellant:
    1. Where plaintiff alleges upon a contract claiming to have overpaid a builder for-work done under this contract, and defendant reconvenes, alleging the nullity of the contract by reason of alterations and additions to thebuilding, and claiming, therefore, as upon a quantum meruit, the burden of proof is upon the intervenor to show (a) the abrogation of the contract, (b) the extent of the alterations, and (c) the value of the same.
    2. Where the contract provides that alterations or additions shall not be considered as annulling the contract, but shall be estimated and contracted for, and where there is no oral evidence to show abrogation of the contract, it must stand, and payment be made for the work as contemplated by the contract.
    3. Failing to show the value of the' additions and alterations alleged, the reconvenor who holds the burden of proof has failed to establish his case, and expert evidence based upon the value of the entire building, without reference to the contract price or portions of it, is of no weight in determining the indebtedness of the parties.
    4. Expert testimony can not be admitted to show the value of work on a quantum meruit, where the parties have stipulated and fixed a price for certain portions, of it, and if the expert testimony fails to show the value of the alleged alterations and additions, such testimony is of no weight in determining the issue.
    5. It is the settled jurisprudence of this State, that where a party relies upon expert testimony, the lowest estimate of the experts is to be taken as governing.. See Succession of Dudos, 11 An. 406; also Collins vs. Graves, 13 An. 96.
    
      Molse & Titche for Defendant and Appellee:
    
      1. The question to be-decided is the cost of a certain building, to be ascertained chiefly by expert testimony.
    Some of the experts examined the building in 1882, when it was constructed, and made their estimates from [that inspection and the prices then paid for material and labor; the others examined the building in 1889, seven years after its com pletion? computing from memory and from conversation with a dealer in lumber what allowance must be made for fall in prices.
    We contend that the former estimates are so much more direct, that the latter must give way in case of conflict.
    2. Where the experts examined for the plaintiff and those examined for the defendant conflict in their estimate of prices paid and positive proof is produced establishing the price of a number of items estimated, and proof shows that in all cases where the x)ricesare established the defendant’s exports are in error, the court will be justified in suspecting their estimate on all the other items. Where sirch direetproof shows' that the plaintiff’s experts are correct in alltheir estimates of such items, the court, on the contrary, will infer the correctness of their estimates on all. the other items.
    
    And in such case the'court will be justified in adopting the finding of the latter nndrejecting altogether that of the former.
    8. “ The practice has been to receive for what it is worth the testimony of an ex-pei’fc when his observations are made ex parte. Notice should be given. Knot given, such observations may be exposed to discredit, though not to exclusion for this particular reason.” Wharton’s treatise on the Law of Evidence in Civil Issues, Sec 455.
    4. The old-time notion that in case of conflict of expert testimony, the “lowest estimate,” or the “average” of all the estimates, or iihe “conclusions of the majority” must prevail, has long been discarded, and has no recognition in modern jurisprudence.
    Judges will use their own reasoning powers and judge by the weight of the evidence. Wharton’s Law of Evidence in Civillssues. Note to See. 455.
   The opinion of the court was delivered by

McEnery, J.

In 1881 the plaintiff employed the defendant to tear down an old building and erect a new one, on the premises Nos. 472 and 474 Gamp street, in the city of New Orleans. There were several written contracts entered into between the parties. The house was constructed by the defendant. There was a disagreement between [the parties as to the value of the work, its character and price. The plaintiff, alleging he had overpaid the defendant, brought suit against him for the amount which he alleges he paid the defendant in excess of the value of the work, including cost of materials, etc. The plaintiff abandoned the written contracts between him and the defendant.

The nature of the suit may be determined by the prayer of’his petition, which is as follows:

* * * “ That after due proceedings had, the determination of the fair and just price and compensation• due to said defendant Dreyfous for the materials, labor, services and commissions as set forth in this petition; that petitioner have judgment for the sum paid by him to said Dreyfous in excess of the fair and just price of said materials, services ■and commissions.

The defendant answered, denying plaintiff’s demand, and also prayed for a valuation of work and materials furnished, with 10 per •cent, for builders’ commission. He reconvened and prayed for a judgment of $3800 against the plaintiff for balance due him.

There was judgment for the defendant for the sum of $3353.24. The plaintiff appealed.

There were many experts employed to examine the building in order to estimate the cost of tearing down the old building and erecting the new one. Among the number were three who were engaged several weeks in making a detailed and careful estimate of the value pf the workmanship done by the defendant, the cost of material furnished by him, and the cost of removing the old building. ,

These architects ,and builders were selected by both parties to this litigation when it was proposed to arbitrate their differences.

John K. Collins was selected by the plaintiff. His estimate of the entire cost of the tearing down of the old building and the work, material and labor employed in the new building, with the commission added, was $13,672.17.

We deem it just to accept this estimate, being the lowest.

In the opinion in Yillalabos vs. Mooney, 2 L. 333, the Supreme Court used language very appropriate to the present controversy, as follows:

“The witnesses who were examined in this case, most of them architects and undertakers by profession, differ materially in their estimates of the value of material furnished and labor performed by the defendant. It is the interest of such men to value services which they are in the habit of performing at the highest possible rate; and there is sometimes an esprit de corps prevailing among them formidable to the interests of proprietors when any collision occurs between the latter and one of their body. Taking these circumstances into view, the truth will in most cases be most probably found in the lowest estimate made by any one of them, when called on to value services’rendered by men of their art; considered, all of character equally unexceptionable and uninfluenced by circumstances having a peculiar tendency to operate more on one than another of them.”

The principle here announced was affirmed in Suc. Duclos, 11 An. 406, and Collins vs. Graves, 13 An. 96.

The amount stipulated in a contract that expired may be correctly used as a means to ascertain the just value of the work performed; but ought not to be considered in exclusion of all other testimony. 2 L. 333.

But in the instant c.ase the departure from the original plans and estimates, which is recognized by plaintiff and defendant, was to such an extent that little information can be obtained from the written contracts as to the value of the materials furnished and the work performed by the defendant.

We will therefore follow the course pointed out by both parties and estimate upon a quantum meruit and adopt the estimate of Collins, which was for the sum of $13,672.17. To this must be added the sum of $275 for mason work, which was admitted by plaintiff and not estimated, and $820 difference in favor of defendant on the pavement contract.

We are of the opinion that the judgment of the lower court does substantial justice between the parties.

Judgment affirmed.  