
    Bush et al. v. Finucane, for use, etc.
    When work performed under a contract has been accepted, the party performing is entitled to compensation, and if defective, a claim for damages, if not waived, may be recouped.
    
      Appeal from County Court of Arapahoe County.
    
    The facts are stated in the opinion.
    Messrs. Bentley and Vaile, for appellants.
    Mr. James H. Beown, for appellee.
   Helm, J.

This action was originally brought before a justice of the peace to recover a balance of $65, claimed to be due for labor performed and materials furnished, in erecting a certain structure at Broadway Park, near Denver. It was afterwards tried de novo in the county court on appeal, without the intervention of a jury. We have before us, therefore, neither written pleadings nor instructions to a jury. Plaintiff recovered a judgment of $50.

The defense is that there was.a special oral contract for the shed or building, and that plaintiff failed to comply therewith.

Appellee’s first objection, that the judgment cannot be reversed, because no exception was reserved thereto, is based upon a misapprehension of facts. The printed abstract fails to mention such an exception, but the transcript on file in this court shows that it was duly reserved.

The special contract is sufficiently established;- and the testimony shows, without contradiction, that in at least one particular there was a material non-compliance therewith; the building was to be “ battened all around,” but the back side and ends were not battened at all. Other defects were complained of; it is, however, unnecessary to notice them here.

The evidence is extremely meager, and, in some particulars, highly unsatisfactory. But we think it establishes an acceptance by defendant. There is nothing to indicate a refusal to receive and occupy the structure; while the testimony of four witnesses, including that of both defendants, shows that it was in use for sheltering horses and buggies. This was the very purpose for which it •was constructed.

Having occupied and used the building, thereby voluntarily receiving the benefit of plaintiff’s labor and expenditures, defendants will not, under the circumstances of this case, be heard to deny his right of recovery. Defendants objected to the character of the work, and can-not be held to have waived a right to damages, in the matter of battening at least; but these damages were a proper subject of recoupment. The county court deducted $15 from the contract price; and, in the absence of any testimony showing the amount of defendant’s injury on account of non-compliance with the agreement, we must presume that the sum so fixed upon was sufficient.

The judgment is

Affirmed.  