
    John Kutts versus William Pelby.
    The plaintiff having been requested by the defendant to prepare plans for a theatre, drew a sketch of a front, which was presented to the defendant and kept by him a week ; and being pleased with it, he directed the plaintiff to make the plans. The defendant’s master-builder, by his direction, called on the plaintiff and took the plans to make an estimate of the cost of a theatre, and kept them a week, and made an estimate on them, and delivered it to the defendant. The defendant, however, concluded not to build by those plans, and they were in the plaintiff’s possession and produced by him at the trial. It was held, that* the evidence proved a delivery of the plans to the defendant, and that the plaintiff was entitled to recover a compensation for his services.
    
      Held also, that the plaintiff’s right to recover was not affected by the circumstances, that his bill, presented to the defendant before the action was brought, was by mistake for too large a sum, and that while the action was pending he declared he had refused the plans to the defendant, and the defendant should have them when he had paid for them, or had paid the bill, and not before.
    Assumpsit to recover a reasonable compensation for labor and services performed for the defendant, in preparing designs and drawings of plans for a theatre, with all working plans and specifications. On the 30th of March 1836, the plaintiff presented the defendant a bill "for $340, having been made for that sum instead of $295, by a mistake of the plaintiff in casting the items of his account from his books. The defendant refused to pay the bill, and on April 9, 1836, the plaintiff brought this action, without having made a demand for $295, the sum justly due.
    The plans were produced by the plaintiff at the trial; and the defendant contended that they had never been delivered or tendered to the defendant. On this point one Whitaker, called by the plaintiff, testified, that he called on the plaintiff and obtained a sketch of an Egyptian front, and presented it to the defendant ; that the defendant kept it a week and expressed himself pleased with it, and said it might answer ; and that the defendant then directed the plaintiff to make the plans. One Washburn, called by the plaintiff, testified that by the direction of the defendant, he took the plans from the plaintiff’s office, in February 1836, to make an estimate of the cost of a theatre, and kept them a week ; that he made the_ estimate on them, and gave it to the defendant ; that the defendant concluded not to build by those plans ; and that the witness, during the same year, superintended the building of a theatre erected by the defendant. It was testified by witnesses on the part of the defendant, that since the commencement of the action the plaintiff had said, “ that he had refused the plans to the defendant ; that the defendant had asked him for them ; that he had them in his possession ; and that the defendant should have them when he paid for them, or paid the bill, and not before.”
    
      March 14th.
    
    
      March 19th.
    The jury were instructed, that the plaintiff was entitled to recover; and they found a verdict accordingly, for $295, with interest from the date of the writ. The defendant moved for a new trial on the ground of a misdirection.
    
      Parsons and Stearns,
    
    in support of the motion, cited Atkinson v. Bell, 8 Barn. & Cressw. 277.
    
      E. Hasket Derby and Andrews,
    
    for the plaintiff, cited Bement v. Smith, 15 Wendell, 493.
   Putnam J.

delivered the opinion of the Court. The defendant contends that where work and services are performed upon materials which belong to the operator, the property in the whole remains in him, and he cannot recover while he retains the property and possession ; but that to enable him to recover he must prove a delivery, or an offer or tender to the defendant, of the things so prepared for the defendant. And the law is unquestionably as the counsel for the defendant states it to be. But the counsel for the plaintiff insist that the plaintiff actually delivered the plans to the defendant, and that the defendant was satisfied with them. And' if the fact be so, the plaintiff is entitled to recover.

The matter in controversy is, whether this fact has or has not been proved. Now we think that the fact was well established by the evidence reported.

■ The defendant had a sketch of the front, and kept it a week, and was pleased with it. He then directed the plain tiff to make the plans. And by the direction of the defendant, his principal workman took the plans from the plaintiff, to make an estimate of the expense of the building, which was given to the defendant. It is true that the defendant did not conclude to build by those plans; but that circumstance can make no difference.

And the declarations of the plaintiff, that the defendant should not have the plans until he paid for them, or paid the bill, do not affect the plaintiff’s right to recover.

If before any delivery the plaintiff had imposed an unreasonable condition to be performed by the defendant as a condition precedent, that circumstance might have been a good defence. But there is nothing in the case to warrant such an objection. There was no condition whatever imposed when the plans were delivered, as is before stated. And the declarations, which were made after the action was commenced, were founded upon a mistake in calculating the items of the bill, and cannot be reasonably considered as affording any substantial ground of defence. The defendant has had the benefit of the services, which were performed for him at his request, and he is, as we all think, legally bound to pay for them.

Let the judgment be rendered for the plaintiff according to the verdict.  