
    
      D’APREMONT vs. PEYTAVIN.
    
    Appeal from the court of the second district.
    If the evidence be not positive,the supreme court will not disturb the finding of the jury.
   Martin, J.

delivered the opinion of the court. The plaintiff claims a sum of money, for work and labour done as an overseer, for a fixed price, and as a carpenter or wheelright on a quantum meruit. The answer denies that the defendant is in any manner indebted to the plaintiff, and alleges the want of an amicable demand.

East'n District.

Jan. 1818.

There was a verdict far the plaintiff, and judgment was given accordingly, whereupon the defendant appealed, and the case is submitted to us without any argument.

There is not any statement of facts, but the depositions of the witnesses heard at the trial, come up in writing. From these it appears, the defendant reded on supporting, what he must have considered as an implied allegation, that the plaintiff did the defendant’s work in so bad and unskilful a manner, that the defendant’s crop of sugar, was injured in quality and quantity, chiefly by an excessive use of lime.

The testimony on the whole does not establish the fact contended for-and is on the main point contradictory-one of the witnesses deposing that good sugar is made, using only one barrel of lime for thirty hogsheads, 4 1-2 barrels for 130 hogsheads, while another says, that twelve or thirteen barrels are used for ninety hogsheads of sugar, which is one barrel of lime for seven hogsheads-, we are unable to say that the jury erred, in weighing the evidence before them, and judgment was correctly given thereon since the verdict was not complained of. But as there was an allegation in the answer, that no amicable demand was made, and the plaintiff did offer no evidence on this head, the court erred in giving judgment for costs.

Turner for the plaintiff, Moreau for the defendant.

The judgment is therefore annulled, avoided and reversed. and judgment is here given, for the sum of six hundred and fifty dollars, without any costs to the plaintiff, the costs of the defendants in both courts to be deducted out of the judgment.  