
    
      CURATOR OF LATROBE vs. SINNOTT.
    
    
      Appeal from the court of probates of the parish and city New Orleans.
    
    
      When the case is doubtful on its merits the judgment of the court below prevails.
    
   Porter, J.

delivered the opinion of the court. This is an action in which the plaintiff claims $697 9 100 for the admeasurement and valuation of certain buildings erected by the late H. B. Latrobe. The cause has been twice tried ; on the first examination of it, the judge of the probate court allowed sixty dollars, as a proper compensation for the work and labour of the plaintiff-from that judgment he appealed, and we remanded the cause, because the evidence on record did not enable us to perceive on what ground the judge allowed that sum. Ante, vol 1,192.

East'n District.

June, 1824.

It now returns to us with additional evidence, and with another judgment of the court below, allowing the plaintiff one hundred dollars for his services.

The principal ground on which the correctness of the judgment is assailed is, that it is proved by a variety of witnesses it is usual and customary in this city to charge 2 1-2 per cent. on the value of the property measured, and that the witnesses consider the work worth that much. In opposition to this custom, and the opinion formed on it, it was proved on the part of the defendant, by the city surveyor, that this is only a correct charge where the property is of little value, and that when it is of great amount, twenty dollars a day is the proper compensation, and that which he is in the habit of charging.

The judge below acted on the opinion of this last witness, and we cannot say that he erred. The custom proved, appears to us a most unreasonable one, and the opinion given by the witnesses, as to the value of the labour, founded on that custom, is entitled to little weight. The sum allowed, we think a fair compensation for the services rendered ; admitting it to be doubtful, the judgment of the inferior court on a question of fact must prevail here.

Hennen for the plaintiff, Carleton and Morphy for the defendant.

It is therefore ordered, adjudged and decreed, thatthe judgment of the court below be affirmed with costs.  