
    (36 South. 911.)
    No. 15,230.
    FRANKLIN FIREPROOFING CO. v. SONNEFIELD & EMMINS et al.
    (June 20, 1904.)
    APPEAL — REVIEW.
    1. This case involves only questions of fact.
    (Syllabus by the Court.)
    Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell,. Judge.
    Action by the Franklin Fireproofing Company against Sonnefield & Emmins and others. Judgment for plaintiff, and the Fidelity & Deposit Company, defendant, appeal.
    Modified.
    Purnell Mitchell Milner and Wise, Randoph & Renall, for appellant Fidelity & Deposit Company. Herndon & Herndon, for-plaintiff, appellee..
   PROVOSTY, J.

This is a suit by a subcontractor and furnisher of materials and labor against the contractor and the owner-of the building upon which the material and labor were bestowed, and against the surety of the contractor.

The only dispute is as to certain extras claimed by plaintiff and as to certain credits claimed by defendants.

On the two items, for cement and for making tests, the preponderance of the evidence is with the defendants.

The item for boards back of lavatories is not claimed in the petition, and therefore cannot be allowed.

The preponderance of the evidence is with the plaintiff on the item of pipes, shafts, partitions, etc. — $645.60.

Also on the subject of the payments for which defendants produce receipts. Perhaps, if the receipts had been brought up in the original, our conclusion might have been different, but we have to take the transcript as it is. Defendants’ application to have the receipts sent np in the original came too late; it should have been made in sufficient time not to have delayed the trial of the case.

Defendants are entitled to much more than $11.30 for the difference in the cost of the construction of the roof of the rotunda. With the exception of the sides of the skylights, the same surface which was covered with metal, when that material was substituted to concrete, would have had to be covered with concrete if the change from concrete to metal had not been made. Plaintiff’s explanation of why the sidewalls of the skylights should be deducted from the concrete surface, and not deducted from the metal surface, is about as unsatisfactory as an explanation of something inexplicable can well be. So far as the area is concerned, we shall adopt the measurements given in the sheet D. They are there given in detail, whereas in the corrected exhibit they are given in the lump. We have no reason to suppose the measurements of the sides of the beams are not correctly given. Defendants are entitled, therefore, to credit for 1,674 feet at 24 cents, less the same area plus that of the beams — 1,056.8 at 10 cents; or, say, $401.76 less $273.08, or a difference of $128.68.

The account, then, must be stated as follows:

Amount due under contract........ $17,806 00
Extras:
As per sheet E................. 40 00
“ “ “ F................. 50 00
Work of Gilliland.............. 2 60
Pipes, shafts, partitions, etc..... 645 60
$18,544 20
Credits:
As per sheet A Hoist ........ $12,513 93 2,145 70 10 00
Rotunda roof . 128 68
- 14,798 31
Balance due plaintiff..........$ 3,745 69

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended so as to reduce the claim of plaintiff to $3,745e9/ioo, and that, as thus reduced, it be affirmed; appellee to pay costs of appeal.  