
    J. B. LeDuff, f. m. c., v. Widow A. Porche and L. Carmouche.
    Where a party takes upon himself the selection of a person to .do a certain job of work, lie takes upon liimse.lf the risk .of skill if the contractor employs the person thus seleeted.
    PPEAL from the District Court of Point Coupeé, Farrar, J.
    
      A. Provosty, for plaintiff,
    contended: We rely upon the following points: 1st. That the court erred in admitting proof of damages sustained by defendants, either for delay or otherwise, as it was not alleged nor proved that they put plaintiff in mora. See bill of exception. 2d. That defendants took upon themselves the risk of the work when the contract was made; and, besides, received it without objection when completed. 7th, R. R. 131. 3d, R. 06, R. 10. 3d, 2 R. 1. 3d. That the defendants did not suffer the damages alleged and claimed; that if they did, they were caused by their own act, at any rate, that they never entered into the contemplation of the parties at the time of the contract, and were not even tjie direct and immediate consequence of plaintiff’s fault.
    1st. For a full statement of our objections, we refer to our bill of exception and to the following authorities: 14th L. R. .81; 5th L. R. 416; Morion v. Pils, 1st Ann. 333.
    2d. The defendants took upon themselves the risk of the work. The evidence in this point is conclusive: plaintiff would not assume the work; he alleged his inexperience as a kettle setter; yet defendants insisted in his undertaking it, because it was easier to get along with him, a man of color and well known, than with white men (Americans) who, he said, “ did not behave well;” plaintiff still asserting his incapacity, defendants pointed out to him his brother Honoré Le Buff, who to their knowledge, they said, was a very competent workman ; then, and then only, plaintiff agreed on condition that his brother should help him, adding that otherwise he would not contract. Honoré LeBuff was employed. The defendants wanted but one chimney, to which Honoré objected, stating he preferred two chimneys for the furnaces, as was customary. The defendants insisted upon one chimney, although Honoré said he had a bad opinion of the plan.
    3d. That as a matter of fact, the defendants did not suffer the damages complained of from any fault of the plaintiff or the work done; and that even under ordinary circumstances, we could not be made responsible for the damages, supposing them proved; for it will readily be perceived that when the contract was formed, such damages never entered into the contemplation of the parties, and are not even the direct and immediate consequence of plaintiff’s faults. C. C. art. 1928, sec. 1 and 2. Poth. Oblig., Nos. 160 and 161.
    
      T. J. Cooley, for defendants,
    contended: 1. The testimony to prove the damages suffered by defendants, in consequence of defective work of plaintiff, was properly admitted. Morton v. Pollard, 9 L. R. 174. C. C. art. 1927, No. 1. 2. If the defendants were entitled to a deduction for work not done, and for the price of re-setting the kettles, it must be because the jury were clearly of opinion that the plaintiff’s work was unskilfully done, and that his contract was not complied with. If so, defendants were clearly entitled to damages which they suffered in consequence of that unskilful work. C. C. 1928.
    What damages .entered into the contemplation of the parties at the time of the contract? Both parties knew that a set of sugar kettles cannot be tried until the sugar cane crop is ripe; and that then, if the kettles do not work properly, time will be necessarily lost before the kettles can be re-set or repaired; and time, during the grinding season, is all important. They knew, too, that in such cases a prudent man will put his canes in wind row; and that a loss is always suffered in consequence thereof. Therefore, under the rule, plaintiff is liable for that loss, as established by the testimony.
    They knew that if the kettles were unskilfully set, more wood would be consumed than is necessary for a good set. Therefore, plaintiff is liable for the excess of wood burnt, as established by the testimony.
    They knew that if the kettles were so badly set as to require their being torn down during the grinding or any other season, that they must not only be re-set, and the price to the contractor paid, but that all new materials must be paid for; the labor of slaves furnished to assist in setting them up; the board of workmen, &c., must all be paid for; and that these expenses were the direct result of the bad work put up. For how else can the defendants be compensated for their losses occasioned by the plaintiff’s bad work ?
    If these losses and damages were the direct consequences of the unskilful manner of setting up the kettles, they must have been in the contemplation of the parties at the time of the contract. Duranton des Contrats et Obligations, lib. iii, tit. 3, sec. 4, No. 478.
    The jury allowed defendants $200 for re-setting the kettles ; but on whatprinciple did they refuse to allow also $20 paid to F. Lieux for trimming the kettles ?
    Besides, the work was so unskilfully and so badly done, and such improper materials were used in the work, that the plaintiff was guilty of fraud, and is liable to all the damages that resulted from the improper execution of his contract. Magna negligentia, culpa est; magna culpa dolus est. L. 226, ff. de Verb. Oblig.
    By his undertaking he held himself up as a kettle setter, work which requires great skill and experience, in which great modifications on scientific principles have been made within a few years back, and it turns out that the person to whom he confided the work imbibed his principles of sugar kettle setting from Matre Lambert forty years ago, (see testimony of Honoré LeDuff, who set the kettles for plaintiff, where he says he is fifty-five years old,) and that after setting a number of sets of kettles, he had abandoned the business for some fifteen or sixteen years. The defendant, Carmouche, believed that he was a good kettle setter, and he was in perfect good faith.
    3d. If the court should find the virdict of the jury correct, the judgment on it must be reversed; for it allows interest on the sum allowed by the verdict from judicial demand, whilst the verdict does not allow any interest. See verdict and judgment. 5 N. S. 449, 462. 7 N. S. 224. 8 N. S. 263. 2 L. R. 157.
   The judgment of the court was pronounced by

Rost, J.

This is an action for work and labor done according to three distinct building contracts entered into, verbally, between the plaintiff and the defendants. There is no controversy before us about two of the contracts. The other was for the putting up of a set of sugar kettles and a chimney. The defendants allege that the work was completed too late, and that the kettles were so unskilfully put up that they could not be used, and had to be taken down and re-set during the grinding season; they claim damages in reconvention.

The case was tried before a jury, who deducted $200 on account of the defective work in setting up the kettles; and judgment was entered accordingly; the defendants have appealed, and the plaintiff asks that the judgment be amended, and that the $200 deducted by the jury be allowed to him.

It is proved that the defendant, Carmouche, asked several times of the plaintiff to set his kettles, saying that he preferred him to American workmen, and giving his reasons for the preference: he said that he knew Honoré LeDuff, the brother of the plaintiff, to be a good kettle setter, and that he believed him fully competent to set his kettles. The plaintiff then said, that if his brother consented to do the work, he would undertake it; otherwise he would not, he not pretending to be a kettle setter.

Honoré LeDuff accepted the proposal and put up the kettles. The defendants, in selecting, as they did, the person who was to do the work, took upon themselves the risk of his want of skill, and released the plaintiff from all responsibility by reason thereof. Their agreement was that they would pay the plaintiff two hundred and fifty dollars for the setting of his kettles, if he would get Honoré LeDuff to set them. The only obligation which the plaintiff contracted was to get Honoré to do the work. He has complied with that obligation and is entitled to be paid.

It is therefore ordered that the judgment in this case be amended, so as to be in favor of the plaintiff for nine hundred and twenty dollars; and that as amended it be affirmed, with costs in both courts.  