
    SAUZENEAU vs. DELACROIX & AL.
    Whether the appellee may complain of the judgment and demand more than what is given him in the court a quo?
    If an under-taker agree to do in a theatre "all the joiner's work necessary" this will include works of ornament.
    Appeal from the court of the parish and city of New Orleans.
   Derbigny, J.

delivered the opinion of the court. In the opening of this case, the counsel of the plaintiff, who is in this court the appellee, has agitated a question of practice, which is of considerable importance, to wit, whether as appellee, he is precluded from shewing, that the judgment appealed from, has not done him justice, and consequently from asking more than that judgment has granted him. But being of opinion, that the appellee is not entitled to more than the inferior lowed him, we find it unnecessary to determine, that question on the present occasion, and will leave it open for future investigation.

East'n District.

March, 1818.

The plaintiff and appellee engaged by contract to execute certain works, to the Orleans Theatre, for which he was to receive a stipulated price. It is admitted that this price has been paid him in full. But the appellee having done some extra works, over and above those which he was bound to perform, he has instituted this suit to recover the value of them, His account, which has been supported by testimony, is composed of a variety of items, part of which are articles evidently not contemplated by the contract, which speaks only of joiner’s work, and the furnishing of the necessary iron to consolidate the whole, and to shut the doors and windows. For those articles he is entitled to some compensation. But as to such parts of his account as consist of joiner’s work, he cannot receive any additional payment, for he was bound to execute “ all the joiner’s work, necessary to the edifice, whether enumerated or not in the contract.” His counsel has maintained, that under the word “necessary” such things as those mentioned in the plaintiff’s account, are not comprehended. But we think, that the expression fully embraces even such of them as were intended for mere ornament: ornaments being a necessary part, of such an edifice as a theatre.

Morel for the plaintiff, Seghers for the defendant.

The parish judge has undertaken the separation of the items, which the appellee is not entitled to receive, from those which he claims rightfully. We have verified his statement, and believe it to be correct.

It is, therefore, adjudged and decreed, that the judgment of the parish court he affirmed with costs.  