
    VARION vs. BELL.
    Eastern Dist.
    June, 1838.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    Where a case turns mainly on questions of fact, and the court is unable to pronounce finally on some one of the pleas, it will be remanded for a new trial.
    The petitioner alleges, that in the months of July, August, September and October, 1836, he hauled out, caulked and repaired the steamer Bayou Sara, at the instance and request of the defendant, the owner thereof, all of which amounted to the sum of six thousand seven hundred and fourteen dollars and ninety cents, according: to a written contract and an account, annexed ; that he has been paid the sum of five thousand four hundred and seventy-two dollars and forty-seven cents, leaving still a balance due him of one thousand two hundred and forty-two dollars and forty-three cents, which the defendant refuses to pay, and for which he prays judgment.
    The defendant pleaded a general denial, and admitted he employed the plaintiff to repair his boat, but that he has paid him more than is due, or he deserves, of that he was entitled 16 by contract; that he has made charges for attendance, for extra work, for hire of hands, etc. which he is not entitled to claim.
    He further avers, the plaintiff bound himself to forfeit one hundred dollars for each day he failed to comply with his contract, and that he failed in many instances in not furnishing a sufficient number of ship carpenters, caulkers, etc., whereby the boat was detained thirty days longer than necessary, in consequence of which he sustained damages, by being detained in the business season of the year, to the amount of three thousand and five dollars, which he pleads and demands in reconvention.
    Upon these pleadings and issues, the case was tried before the court.
    The district judge decided upon the contract between the parties, and the evidence produced in respect to the work and repairs made upon*the boat, and came to the conclusion, that there was nothing more due the plaintiff, and that the defendant had complied strictly with the contract. Judgment was given for the defendant, froih which the plaintiff appealed,
    Lockett, for the plaintiff. •
    
      Jones, contra.
    
    
      Where a case turns mainly on questionsoffact, and the court is unable to pronounce finally on some one of the pleas, it ■will be remanded for a new trial.
   Bullard, J.,

delivered the opinion of the court.

This is an action upon a contract for hauling out, caulking, and launching a steam-boat, and an account for extra work done in more extensive repairs. The plaintiff sues for a balance which he alleges to be due to him. The court below gave judgment for the defendant. The case turns on questions of fact, and it appears to us, there is yet a balance due to the plaintiff according to a fair construction of the contract, for work done under the direction of the captain, and with the consent of the owner. But we are unable to ppnounce finally, particularly on the plea of reconvention for damages occasioned by delay in finishing the work. Justice, in our opinion, requires that the case should be remanded.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and that the case be remanded for a new trial, and that the appellees pay the costs of the appeal.  