
    Carpenter & Bros. v. James Stevenson, &c.
    Contracts — Damages for Violation of Contract — Triable by the Court.
    APPEAL EROM HARRISON CIRCUIT COURT.
    March 10, 1870.
    
      Ward, for appellant.
    
    
      Trimble, for appellee.
    
   Opinion oe the Court by

Judge Hardin:

As both the appellant and Stevenson claimed damages for violation of the contract, which might have been more appropriately determined by the finding of a jury, and as Stevenson did some extra work, for which he should have been compensated, and there is a contrariety of evidence as to what proportion of the contract price of $3,100 should have been allowed for work done strictly in accordance with the agreement, it is difficult to determine what was the true balance due to Stevenson. The circuit court, on a review of all the facts, came to the conclusion that appellants should be charged said sum of $3,100 and credited by payments amounting to $1,602.25, leaving a balance of $1,497.75, and for the reasons we have indicated, and without the aid of the verdict of a jury or report of a commissioner, we can not say, with judicial certainty, that this is usury, and must therefore affirm it.

As to the claim of Miller, it seems to be just that it should be paid out of the balance found owing to Stevenson, and if, as insisted, the judgment against the bank for its payment in satisfaction of so much of Stevenson’s claim, as allowed, is irregular and unauthorized; yet, as the bank does not appeal from the judgment, the error, if it exists, can not be available as a ground of reversal on this appeal of Carpenter & Brothers.

Wherefore, the judgment is affirmed..  