
    THOMSON vs. BROTHERS.
    Eastern Dm,
    
      March, 1833.
    APPEAL FROM THE COURT OF THE PARISH AND CITY OF NEW-ORLEANS.
    If a plaintiff introduce evidence to prove a particular fact, he cannot after-wards object to the introduction of evidence by the defendant, to disprove it.
    If a question arise as to the kind of a roof required by the contract for constructing a house, and on which the contract is silent, evidence aliunde to explain it, is admissible.
    
      McMillen, for appellant:
    1. The judge erred in refusing to hear testimony on the disparity of price in raising the walls, and that necessary to widen the foundation.
    
      
      2. Also in refusing: to bear testimony of an architect, as to the price paid for erecting the houses described in plaintiff’s contract, in order to preclude the supposition, that the shed-r00f was contemplated in said contract.
    3. There is error in the judgment, in not allowing defendant’s claim filed, amounting to the sum of one ^hundred and thirty dollars.
    4. Defendant was not liable for rent, for not delivering the houses sooner, as he was not paid for building the same, by plaintiff’s own showing, until long after they were delivered; therefore, he was never in delay, and there is no proof of his having been in delay in finishing them. Ten dollars per month should have been deducted from rent of premises, which defendant occupied, on account of the destruction of a work shop.
    
      Roselius, contra.
    1. The decision of this cause, depends merely upon questions of fact, on which the verdict of the jury is entitled to great weight.
    2. The defendant had no right to charge for extra work, because he has not shown that any work not included in the contract, was performed by him, in compliance with the wish of the defendant. In fact, no extra work is proved to have been done. C. C. art. 2734.
   The facts are stated in the opinion of the Court delivered by

Martin, J.

The defendant and appellant complains, that the first judge erred in refusing him leave to prove, that there was a great difference in the expense and labor in raising the walls of the plaintiff’s houses, beyond the original height, and which would have attended the widening the foundation to the width stated in the contract. The proof was intended to counteract the assertion of one of the plaintiff’s witnesses, that the increased height of the wall, was a proper offset to the diminution in width of the foundation. The defendant further contends, that the judge erred in refusing to allow him to establish by the testimony of an architect, that the price paid for certain buildings, described in the contract annexed to the petition, was so low, that it precluded the idea; that the making shed-roofs, which were alleged to be an extra work, and for which compensation was claimed, was contemplated by the parties.

troduce'evidenco í°,?faXhePSinot ^^“fntróauí by the defendant, to disprove it.

riSifa”tqotheifina byatiief conTraot h°us™st and n^>n which the contract is silent, evidence aliunde to explain it^ is admissible.

On the first point, the testimony was objected to, on the ground that the defendant, who claimed an allowance for the raising of the walls, as an extra work, had not shown that it was done at the plaintiff’s request. We are of opinion, that as the plaintiff had introduced evidence on this part of the case, he could not object to the defendant’s attempt to diminish or destroy it, and the judge erred in denying leave to the ^ ° defendant to do the like.

On the second point, the introduction of the testimony was refused, on the ground that it was impertinent to the issue, as the contract spoke for itself. The defendant claimed payment for the shed roofs, as an extra work; the plaintiff contended they were included in the work the defendant had undertaken to do for a certain sum. It is contended by the plaintiff’s counsel, that this was an attempt to introduce testimonial proof beyond what is contained in the act, which the Civil Code, 2256, prohibits. This, in our opinion, was merely an attempt to cause a latent ambiguity to disappear. Whether the house was to have shed roofs or not, is a matter on which the contract was absolutely silent, evidence was therefore to be sought aliunde. If a house let or leased on a given rent, without stating whether it be a monthly or yearly one, parol evidence is certainly admissible, to establish that the rate of , , , _ the rent manifests, that the parties contemplated a yearly one.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the Parish Court be annulled, avoided, and reversed, the verdict set aside, and the case remanded, with directions to the judge, not to refuse leave to the defendant, to introduce the evidence, of the rejection of which, he complains: the plaintiff and appellee paying costs in this court.  