
    WILEY ET AL vs. DE ARMAS.
    Eastern Dis.
    February, 1833.
    APPEAL PROM THE COURT OP THE FIRST DISTRICT.
    Where the case turns on the meaning of certain words, which are not free from doubt, the construction given by the jury and the court below, will be followed.
   The facts of this case are fully set forth in the opinion of the court, pronounced by

Porter, J.

This action is brought on a promissory note, in these words, « New-Orleans, April 24,1831. I hereby bindmyself to pay Messrs. Wiley & Cuningham, sixty days after the work is all finished, the amount of their bill, as slaters, for covering my house at the corner of St. Peter and Rampart streets, say to the amount of six hundred dollars, and the payment shall go in deduction of such amount as to be claimed by M. M‘Cleary; this obligation, in part, is given by virtue of an order of M. M‘Cleary.”

tunif^on* °the Sfn w”rds°wS doubt, the construction given by the jury and the bo followed.

De Armas, for appellant.

Sterrett, for appellee.

To a petition claiming this amount, and forty-four dollars an¿ fifteen cents for additional labor done by the petitioners on the house of the defendant, at their special instance and request, the defendant answered ,that he was not liable to pay the amount claimed, as by his agreement he was to pay the plaintiffs out of the sum he should remain indebted to M‘Cleary, the undertaker, when the whole of the work undertaken by him should be finished; that the said work is not finished, and that the plaintiffs had become security for its faithful performance, and that in consequence of the failure of the said M4Cleary, the defendant has paid two thousand dollars more than he owes.

The cause was submitted to a jury, who found a verdict for the plaintiffs. The defendant appealed.

The case has ¿been submitted without argument. The case appears to us to turn on the interpretation to be given to the words, “sixty days after the work is all finished,the amount of their hill, as slaters.” The meaning attached to them by one of the parties, is, that the agreement by the contractors to build the house was to' be entirely fulfilled, before the plaintiffs were to be paid. The other contends, that their work, as slaters, was to be finished before the note could be considered due. The case is not free from doubt, and we do not feel authorised to put a different construction on the words, from that attached to them by the jury and the court below. JLhere is prayer for damages for a frivolous appeal, but we do not think the case one in which they should be allowed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed; with costs.  