
    VARION ET AL. vs. DUPEYRE.
    Eastern Dist.
    
      April, 1840.
    AMEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    Where it is shown that workmen refused to work by the job, the jury may allow their account for materials and work done, or so much as they think right, from all the circumstances and testimony adduced.
    When there is no formal delivery of work, if it is shown that the owner called for a detailed statement of what had been done, and said his negroes would finish the balance, it will be sufficient to charge him, and release the workman from a formal delivery.
    This is an action on an account for work and labor done and materials furnished, in the repair of a floating wharf. The defendant denied generally, and averred that he once contracted with the plaintiffs to do some repairs on a floating wharf, but on the condition that it should not cost more than three hundred dollars; that they afterwards done some work on it, and offered to take a less sum than now demanded, which he refused to give ; and also that they never finished and delivered the work. There were several witnesses examined, who proved the work charged to have been done; but there was no formal delivery shown, or that the work was completely finished. One or two witnesses said the defendant called for the plaintiffs’ account after the wharf was launched, and said he would finish it with his negroes.
    Where it is shown that workmen refused to work by the job, the jury may allow their account for materials and work done, or so much as they think right, from all the circumstances and testimony adduced.
    There was a verdict for the plaintiffs, and from judgment thereon the defendant appealed.
    
      R. Hunt, for the plaintiffs.
    
      Canon, contra.
   Morphy, J.,

delivered the opinion of the court.

This was a suit brought for four hundred and fifty-five dollars and eighty-two cents, on an open account for labor and materials furnished in the repair of a floating wharf belonging to the defendant. The latter, after pleading the general issue, averred that he contracted with plaintiffs for the repair of said wharf, provided that it would not cost more than three hundred dollars; that before finishing the work, the plaintiffs abandoned it, and never made a delivery of the same to defendant, who was obliged to have other floating wharves constructed, which cost him only three hundred dollars each. The case was submitted to a jury, who found in favor of the plaintiffs for the amount claimed; having failed in a motion for a new trial, the defendant appealed.

No special agreement has been shown for the repairs made by plaintiffs. It is proved, on the contrary, that they refused to undertake the work by the job, not being able at that time to ascertain the extent of the necessary repairs. It was agreed that the floating bridge should be brought by defendant to the yard of the plaintiffs, on the other side of the river, there to be hauled ashore and repaired. The charges set forth in the account annexed to plaintiffs’ petition, are admitted by all the witnesses to be correct, and such as are nsually made. No formal delivery of the work appears to have been made to defendant; but the clerk of the plaintiffs testifies, that as soon as the floating wharf was launched into the river, after undergoing an almost thorough repair, the defendant called upon him for a detailed account of the work done and materials furnished; and he (the witness) understo°d that the defendant himself was to finish whatever little remained yet to be done. Another witness heard defendant ,, . . , „ .. . . , . say that his negroes would finish the work; the testimony is somewhat contradictory as to what remained yet to be done, t0 render the repair complete, and as to the time when, 1 , 1 , , , , ., , according to usage, the work should be considered as delivered. From the whole the jury seem to have concluded, (anc^ we caaDOt say they eiTed,) that defendant having undertaken to finish the work, and called for the bill of the repajrs done j3y plaintiffs, relieved the latter from the necessity of making any delivery; and that having thus taken charge of the wharf, it was at his risk from that moment.

When there is no formal delivery of work, if it is shown that the owner called for a detailed statement of what had been done, and said his negroes would finish the balance, it will be sufficient to charge him, and release the workman from a formal delivery.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.  