
    
      PASCAL vs. CALDWELL & AL.
    
    Appeal from the court of the sixth district.
    East'n District
    Dec. 1824.
    Judgment of court below prevails on questions of fact, unless clearly erroneous.
   Martin, J.

delivered the opinion of the court. The plaintiff sued for work and labour per formed, and materials found, on the gas work of the defendant's theatre, and on the plea of the general issue had judgment. The defendant appealed.

The question on which it turns is one of fact. The gist of the defence is, that the gas work of the theatre had been contracted for by the defendant with a third person, who only is liable for the work and supplies for which the plaintiff now seeks to be remunerated.

The testimony is voluminous, and on the examination of it, we cannot come to any other conclusion than that the judge below did not err. On questions likv this, the first judgment prevails with us, unless manifestly wrong.

Preston for the plaintiff, Lockett for the defendant.

It is true, the defendant made a contract with a third person, in regard to the illumination of his theatre by gas: but it is also true, that many of the materials for which payment is demanded, made no part of what this third person was to supply—the plaintiff and his hands worked under the direction of the defendant, and the latter had impliedly given authority to the person by whom the plaintiff was immediately employed to bind him.

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