
    Davidson v. Edgar.
    Where defendant, in a suit for the value of work, merely pleads that the work was unskillful ly executed, by reason whereof he suffered great injury, evidence of the extent of such injury cannot be received. It is otherwise where the defendant pleads such injury as a demand against the plaintiff.
    There is in all cases where work is contracted to be done an implied obligation that it shall be so executed as to answer the object designed. If the proof be that it entirely failed, the jury ought to find for the defendant; but if it be only less valuable than it might have been made, in an action for so much as the work was worth and in the absence of a special contract, the jury should find for the plaintiff as much as the work is proved to be really worth.
    Where a verdict i? contrary to evidence or without evidence to support it, and a new trial has been asked for and refused, we will send the case back fora new trial. Bub where there is evidence on both sides presenting a conflict, it is peculiarly the province of tho jury to determine its weight and to return their verdict.
    Where the testimony was that the witness was present at a settlement between tho parties; that the defendant refused to allow, and di*< not allow, the plaintiff anything for the work for which the suit was brought; and that when they were about to separate the defendant remarked to the palintiff, “Now we are square,” to which the plaintiff replied “ Yes; ” tho jury having found a verdict for the plaintiff for the value of the work: Held, That, the testimony was too uncertain and inconclusive to furnish any ground for disturbing the verdict..
    Appeal from Victoria. Sait by the appellee for the value of work and labor done by him for the appellant in setting sugar-kettles; answer denying all and singular, &c., payment, set-off; and ¡iSfeo:
    “ And for farther plea iu this behalf this defendant says that the worlc and labor in plaintiff’s petition mentioned was not performed in a workmanlike manner; and by reason thereof this defendant saith the same was wholly worthless and of no value to him, and occasioned great loss to him in his sugar crop. And this he is ready to verify, &c.
    “And for further plea in this behalf the said defendant says that the said plaintiff agreed to and with this defendant to set the said kettles and perform the said work in such a manner that the said kettles would work well, ■■and that unless they did so work well he would charge nothing for the work and labor performed. Now, this defendant avers that the said kettles did not work well, according to the tenor of said agreement; but, on the contrary, the work about the same was performed in an unskillful and unworkmanlike manner, by reason of which unskillful setting of the kettles great damage accrued to this defendant in his sugar crop. And this he is ready to verify,” &o.
    
    The special warranty was not proved. The evidence as to the value of the work was contradictory; the witnesses of the plaintiff swearing the work was ■well done, but that the materials furnished by the defendant were bad; the ■witnesses of the defendant swearing the work was unskillfully done and worthless. One witness testified that he was present at a settlement between the .plaintiff and the defendant; that the defendant refused to allow and did not .allow anything for setting the sugar-kettles; that when they were about to •separate the defendant remarked to the plaintiff, “Now, Mr. Edgar, we are square, except the $20.” Mr. Edgar replied, “Tes.” There was no proof of .any set-off. Evidence of the extent of the injury sustained by the defendant in the loss of his sugar crop by reason of the unskillful execution of the work was excluded. Verdict for the plaintiff. Motion for new trial overruled. Defendant appealed.
    
      J. W. Allen, for appellant.
    I. The first error assigned is that the court below erred in excluding testimony tending to show the extent of the damages which accrued to the appellant by reason of the unskillful and unworkmanlike manner in which the work was done and performed by the appellee. Although testimony of the character •described may be inadmissible for the purpose of mitigating the damages accruing to appellee, yet it is respectfully submitted whether it does not become legitimate when introduced as a fact or circumstance showing the uuskillfulness or worthlessness of the work and the degree of that unskillfulness. For this purpose it was proposed to be introduced.
    II. The second error assigned is that the verdict of the jury is contrary to law and fact in this : that the testimony tends lo show there was a warranty that tlie kettles would work well, when in fact they did not work well. That the kettles did not work well is clearly established. Was there a warranty that .they should work well? The proof here is not clear. But we cannot help but regard the weight of testimony, when taken in connection with all the facts and circumstances surrounding- the case, as greatly preponderating in favor of an express warranty. But had there been no express warranty the law, in its beneficence, implies a warranty that the work shall be performed in a skillful and workmanlike manner; that the article constructed shall answer the purposes of its construction. (Chitt. Con., 4ñ0,451.) [Mr. Allen then discusses the facts and endeavors to show that the testimony, although contradictory, preponderated in favor of his position that the kettles were unskillfully set. Hep.]
    III. The third error assigned is that the verdict of the jury is contradictory to law and evidence in this : that the testimony clearly shows that there was, before the institution of this suit, a final settlement of all matters of pecuniary • controversy between the parties. The testimony of the only witness upon this point is clear; equally clear do we regard the law. A party cannot go behind ■a final settlement of mutual and outstanding accounts and bring up items and recover for them. (Chitt. Con., 654, 655; Id., 777; Gresl.Ev., 319, u. a: TJ. S. Dig., vol. 1, p. 29.) The only ground for going behind a settlement by the parties is mistake or fraud. (3 J. J. Marsh B., 82; 1 Id., 516; 15 Wend. B., ■ 83; 1 Cox B., 435; 3 Ves. B., 103.)
    
      J. N. Mitchell, for appellee.
    I. This is a suit upon a quantum meruit for work and labor. The demand is met by a defense claiming unliquidated damages accruing to him by reason of the unskillful execution of the work also defends on the ground of .accord and satisfaction or of settlement upon account stated.
    
      The answer is not sufficient in law for any proof to have been received under-it, though no demurrer was filed to the answer non constat. Vide Tex. Laws. (Mitchell v. Mims, 1 Tex. R.; Lucas v. Lucas, 3 Tex. R.; Wright v. Wright, MS. Op.; 1 Esp. R., 43; Id., 401; 5 Madd. R., 607.)
    The answer is defective because it does not aver and plead accord and satisfaction, nor settlement upon an account stated. (11-Iarr. Dig., p. 5; 5 Bing., IST. C., 288; 7 Dowl. R., 51S; 5 Mee. & W., 289; 3 Jnr., 847.)
    Upon a quantum, meruit, where there was no special contract, the plaintiff is entitled to recover according to the reasonable value proved; but more especially in cases where it is proved that defendant received the work when performed and used it. (Chitt. Cou., 569, 570, n. 1; 3 Watts R. 331; 3 Bing., N. O., 737; 4 Scott, 502.)
    II. The jury are to decide upon the credibility and weight of evidence — to decide the preponderance, where there is a conflict.
    If the failure of perfect working of the kettles was a consequence of defective materials, the fault is with the appellant, who furnished them. There is no-analogy between this case and one of sale of goods, wares, and manufactured articles.
   Lipscomb, J.

We will dispose of the points in the order in which they have been presented.

A reference to the statement of the facts shows that the evidence rejected by the court was this: A witness was asked the extent or amount of the injury sustained by the defendant from the unskillful manner in which the work had been executed. This evidence, it is believed, would have been proper bad the defendant set up this injury in reconvention as a demand against the plaintiff. But no such defense was offered by the answer; and for aught that is apparent on the record, the defendant may have a suit peuding for that very injury. It would therefore seem that the evidence was correctly excluded.

On the second point: It does not appear from the evidence that there was an express warranty for the work; and from the absence of proof, we must conclude that there was none. There is, however, in all cases when work is contracted to be done, an implied obligation that it shall be so executed as to answer the object designed. And if it had been in proof that it entirely failed in what it was designed for, the jury ought to have found a verdict for the defendant; but if it was only less valuable than it might have been made, in an action like the present, in the absence of proof of a special contract, the amount of what the work was really -worth should be the verdict. As to the value of the work and the degree of skill with which it had been performed, the testimony was not clear, but was conflicting; and the settled rule of decision of the court is that when there is such conflict, we will not reverse the judgment of the court below in refusing to grant a new trial. When a verdict is contrary to evidence or without evidence to support it, and a new trial had been asked and refused, we would send the case back for a new trial. But where there is evidence on both sides, presenting, as it here does, a conflict, it is peculiarly the province of the jury to determine its weight, and return their verdict accordingly. (Briscoe v. Bronaugh, 1 Tex. R., 326; Legg v. McNeil et al., 2 Tex. R., 428; Hall v. Hodge, 2 Tex. R., 323; Perry v. Robinson, Adm’r, 2 Tex. R., 490.)

The. application of the rule just mentioned must show the insufficiency of the third and last assignment of error. The evidence of a full settlement by the parties is inconclusive and uncertain ; and it was a question for the jury to determine whether the work sued for in the suit w:is not particularly excluded-from the settlement and left open by the parties for a further adjustment. The record furnishes no sufficient ground for reversing the judgment; it is-therefore affirmed.

Judgment affirmed.  