
    Henry Wenner v. R. G. McDonald & Co.
    Work and Labor — Instructions—Right of Recovery.
    An instruction, in an action for work performed, restricting the plaintiff’s right to recover, to the question whether there was an express agreement to pay for all the work, and excluding the right of recovery on an implied liability to pay for extra work which the defendant permitted to be done without objection, and accepted, is erroneous.
    Work and Labor — Acceptance of Work Done — Implied Agreement.
    Where extra work has been done by a plaintiff, which was permitted by the defendant without objection, and accepted as done in accordance with his wishes, he will be held liable therefor, though not provided for in the contract between the parties.
    APPEAL EROM CAMPBELL CIRCUIT COURT.
    December 6, 1870.
   Opinion oe the Court by

Judge Hardin:

No error is perceived in tbe instructions or other rulings of the court in this case. The third instruction asked for the defendant was obviously misleading, in effect restricting the plaintiff’s right to recover to the question whether there was an express agreement to pay for all the work, and thus excluding the right of recovery on an implied liability to pay for extra work which the defendant permitted to be done without objection and accepted as done in accordance with his wishes.

There is a contrariety of evidence on the question whether the plaintiffs did any more or other work than the original agreement bound them to do; but some of the testimony conduced to prove that extra work was done and an express agreement on the part of the defendant to pay for it, and to sustain the finding of the jury as to such work, and we can not say that the court should have granted a new trial on the ground that the verdict of the jury was not sustained by the evidence; especially as the jury had the benefit of their own inspection of the work and the house of Frith mentioned in the evidence as a model in some respects, by which the house was to be built.

Hawkins, for appellant.

Fisks, for appellee.

Wherefore, the judgment is affirmed.  