
    Varion v. Bell.
    Where it is ascertained that more repairs were required on a steamboat than were contemplated between the parties and included in their contraot, the contractor will be entitled to the value of his extra work at a fair price, without being liable for the delay occasioned thereby, beyond tho time fixed by the contract.
    The principal or master workman is only entitled to extra pay for his personal attendance when there is no contract fixing the hire and wages of tho workmen employed.
    Appeal from the commercial court of New Orleans.
    This is an action instituted on a contract, and on an account annexed, charging extra repairs', for work and personal superintendence of the plaintiff" in hauling out and caulking the steamboat Bayou Sara, belonging to the defendant, in the summer of 1836. The plaintiff claims an additional or extra allowance for work and repairs made by him over and above the sum stiip®lated in the contract.
    The defendant denies the correctness of these extra charges and also his liability to pay them; and avers that by the terms of the contract he-is-entitled to damages for each day of the detention of the boat beyond the- time . stipulated for the completion of the work in the contract; and sets up a [533] reconventional demand.
    The case was first tried before the district court and there- was judgment for the defendant; which on appeal to this court was reversed. See 12: La. Rep. 384.
    On the return of the cause to the district court, it was. tiled by a- jury,. and a verdict found for the plaintiff in the sum of one dollar; and a new tria was granted.
    The cause was ultimately removed to the commercial court, and again submitted to a .jury, who after hearing all the evidence and arguments of counsel, returned a verdict for the plaintiff of $1114 43. After an unsuccessful effort to obtain a new trial, from judgment confirming this verdict the defendant appealed.
    
      B. Sunt and Lockett for the plaintiff,
    showed:
    1. That this suit is brought to recover a balance of $1242 43, for work done to the Bayou Sara, and fully set forth in the contract and annexed to the petition.
    2. The answer pleads payment in full for all that was due; charges that the petitioner had many illegal items in his account, to wit, for attendance, for extra work, for hire of hands, &c.; and claims damages of $3000 for detention of the steamer. An account, containing the items overcharged, was filed with the answer.
    3. The agreement between Bell and Varion consists of two parts: 1. The two first articles stipulate for the hauling out, caulking and launching the steamer for $1150. 2. The third and fourth articles stipulate the-rates to he paid for timber, ship-carpenters, &e., and provides that the work should be done to Captain Laurent’s satisfaction.
    4. Bobert Garland, the clerk of petitioner, swears that he kept an account of the work done and materials furnished in the repairs of said boat by Varion; that the charges made, corresponded exactly with the prices actually [534] paid by Varion, and that these were reasonable. This is corroborated by other witnesses.
    5. Mr. Stockton and Captain Spedden, were called on by Captain L. to examine the steamer. Captain L. said he had done all he intended to do to her, all he thought neceessary, and wished to have her reported by them, as inspectors, to be a first class boat, and John McLeary heard Captain Laurent say he was satisfied, &c.
    6. Then the contract was functus officio. This was seven or eight weeks after the repairs commenced; so says Captain Laurent. Captain Spedden says four weeks. Captain Stockton says some time in July or August, 1836. Garland says prior to 13th August, 1836.
    
      O. M. Jones, for the defendant,
    contended that by the contract, the hauling out and caulking the boat should have been done for $1150, and no extra charge of any description was to be allowed; and yet the defendant is charged $220 for extra caulking, when it is shown the whole would only have cost $500; and $4 per day for the personal superintendence of the plaintiff eighty-six days, amounting to $344, whieh is more than the original account. There ho charged $3 for the first thirty-two days, and $4 per day for the last fifty-four days, making a difference of $32 in his favor. He is not entitled to a dollar of this charge.
    2. There was no necessity for extra caulking, if it had been done properly at first The evidence shows the boat never was properly hauled out, and that consequently she could not bo properly caulked while her stern was in the water.
    3. By the terms of the contract, the plaintiff was to furnish ship-carpenters at $3 per day, yet he has charged $3 50 per day, making $80 50 more than he was entitled to. He has obtained a verdict for more than was due him, under the contract, in the sum of $612 50, to wit, $312 50 for his personal superintendence; $220*for extra caulking; and $80 50 for extra carpenter’s hire; so that the court will perceive if the plea in [535] reconvention is entirely overlooked, and also the evidence which shows what work was executed under the defendant’s direction and paid for by him, the plaintiff is only entitled to the sum of $629 93 by the most liberal construction of the contract; for these reasons a reversal of the judgment, and remanding the case is asked for; or that it be so amended as to allow only $629 93.
   Morphy, J.

delivered the opinion of the court.

Plaintiff seeks to recover a balance, of $1242 43, for work done and materials furnished for the repair of the steamboat Bayou Sara, according to an account and contract annexed to his petition. The answer pleads payment in full of all that plaintiff is justly entitled to; objects to a number of charges in the account, and demands in reconvention $3000 damages for the detention of the boat thirty days beyond the time necessary for the repairs. This case has already been before us on an appeal brought up by the plaintiff against whom judgment had been rendered. Some balance appearing yet due to him, but the evidence not enabling this court to determine the amount or to pronounce finally on the plea in reeonvention, the case was remanded. 'Upon its return to the inferior court, it was laid before a jury, who returned a verdict for the plaintiff in the sum of one dollar. On a new trial being granted, the plaintiff obtained a verdict for $1114 43; and from the judgment entered up on this last verdict the defendant prosecutes the present appeal.

The variant views taken of the rights of the parties to this controversy by the two juries who passed upon it and by the district judge who first had it before him, arose, no doubt, in a great measure, from their different understanding of the contract upon which both plaintiff and defendant rely. It is clear from the evidence that the repairs which it was found necessary to make to the boat as the work progressed were much greater [536] than either party originally contemplated, and this creates the difficulty in relation to the charges objected to in the plaintiff’s account, and the unusual delay and detention of the boat complained of by defendant. The repairs lasted from the 11th of July to the beginning of November. From the testimony of the several ship-carpenters examined on the trial, we incline to think that the defendant has cause to complain of some loss of time, which the evidence shows has been extremely prejudicial to him, but the jury was perhaps satisfied under the evidence that the plaintiff could not, at that season of the year, procure more hands than he actually employed to do the work, and that it was not his fault if, after having nearly completed such repairs as were first found necessary, he was ordered to take the boat to pieces in order to make her undergo a more thorough repair. As to the account of plaintiff, we have examined it closely in connection with the contract and the evidence in both records. There are only two of the items objected to which, we think, the jury should not have allowed: One is a charge of $4 per day for plaintiff’s attendance during the' repairs, and the other for $3 50, instead of $3 per day, for the hire of ship-carpenters after the 20th of August, 1836. The jury considered that thi contract at that date was at an end, and allowed these items as customary charges in the absence of any agreement. In this, we think they erred, so far at least as relates to the ship-carpenter’s work. By the third article of the agreement, plaintiff engaged to do such ship-carpenter’s work on the hull, deck and guards of the boat as he would be called upon to do ; he was to furnish first rate ship-carpenters at $3 per day, and timber, &e., at stated prices, &c. It appears from the testimony of almost all the witnesses, that the boat had not been entirely hauled out of the water ; owing partly to this circumstance the extent of the necessary repairs was not at first ascertained. Before the repairs, however, were com-[537] pleted, Laurent, who superintended the work for defendant and who had expressed himself satisfied with what had been done, called in the insurance office inspectors some time about the 20th of August, 1836, with a view to have the boat classed. On this inspection it was discovered that she required more extensive repairs; plaintiff then proceeded by order and the direction of Laurent to make these additional repairs, without a day’s interruption, as appears from his own account. As he had bound himself to do all repairs he might be called upon or required to make by Captain Laurent, we consider that the additional repairs were but a continuation of those not yet completed, and were covered by the contract, although not at first supposed necessary by either party. The evidence satisfies us that a charge for personal attendance is customary only when there is no oontract fixing the hire of the workmen employed.

It is therefore ordered that the judgment of the commercial court be reversed ; and proceeding to give such judgment as, in our opinion, should have been rendered below; it is ordered and adjudged that plaintiff do recover of the defendant the sum of eight hundred and forty-nine dollars and sixty-three cents, with costs below; those of this appeal to be borne by the appellee.  