
    IZZE GOLDSTEIN, PLAINTIFF-APPELLEE, v. PAUL KOERNER, DEFENDANT-APPELLANT.
    Submitted January term, 1932
    Decided March 28, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Frank J. Davis.
    
    For the appellee, Aaron Heller.
    
   Per Curiam.

This was an action to recover for the performance of certain tile work; the state of demand being in two counts, the first alleging a right of recovery under an express contract fixing the price at $300 and the second seeking recovery for the reasonable price and value of the work which was alleged to be $300.

The defendant below filed specifications of defense admitting the making of the express contract for $300; asserting that the work was not done in accordance with the plans and specifications but that it was performed in an unworkmanlike manner and was valueless and that the entire work would have to be torn out and replaced. The defendant also filed a counter-claim setting up substantially the same facts as contained in his specifications of defenses but adding thereto that the tearing out and replacing of the work would cost $350 which amount he, the defendant, claims from the plaintiff.

The cause was tried without a jury and resulted in a finding in favor of the plaintiff for $225. Prom the resulting judgment the defendant appeals.

His entire argument is that there was no proof before the court below upon which the judgment can rest.

Counsel concedes that the rule of substantial performance is applicable but insists that there is no proof that the work was so performed.

But from the state of case agreed upon we conclude that there was proof warranting the trial court in so concluding. That being the situation the judgment below is affirmed, with costs.  