
    Benjamin S. Hort vs. John L. Norton.
    in the absence of any contract, the ieg'al presumption is, that tire workman is bound to furnish his own tools and machinery,
    if a workman be employed to do a particular job, and he choose to do some additional work, without consulting his employer, he can not recover for such work.
    TC*HE defendant, by an express agreement, contracted to pay the plaintiff 55200 for'superintending the fixing of the mill-stones, pestles, and mortars of a newly erected steam-rice-mill. This sum the plaintiff admitted had been paid; but he claimed the further sums of g 112 50, for twenty-five days superintending the pulling down and erecting anew the frame work, which supported the mill-stones, and 550 for injuries done to his falls and blocks, implements used in dojng the work. The work was done in the absence and without the knowledge of the defendant. The plaintiff consulted, however, with Mr, Dart, who advised him to proceed in the work; but who, upon his ex-. aminatiop, stated that he had no authority from defendant to makt any contract on the subject.
    One witness said, that in his opinion, the original frame work, although new, was too weak to support the super■structure, and-that his services, in this respect, was worth the sum charged, and that the injury done his implements, was also equal to the charge.
    The jury found for the plaintiff $5 112 50, the amount of the charge for extra superintendence.
    A motion was made for a new trial, on the ground, that the verdict was contrary to law, inasmuch as there was no contract cither express or implied as to this additional ' work.
   Mr. Justice yohnson

delivered the opinion of the Court.

In the consideration of this case, it will he unnecessary to 'consider the correctness of the charge against the defendant, for the injuries done to the plaimiff’s falls and blocks, as it is manifest from the verdict itself, that the jury disallowed it; and the Court concur with the Recorder, that in the absence of any contract, the legal presumption is, that the workman is bound to furnish his own tools and machinery.

The additional charge for superintending the taking down and erecting the frame work anew, is not, I think, supported by the evidence.

By the contract proved, the plaintiff was to superintend the fixing of the mill-stones, pestles and mortars, which includes, necessarily, all the work immediately connected with them; and that a frame was indispensable, will not be denied. Admit, however, that this view is incorrect, and it follows irresistibly that there was no contract on the subject. The evidence negatives the idea of an express contract, and there is no circumstance from which, one can be implied. It was done in the absence and without the knowledge or consent of the defendant; and we have no evidence of his assenting to it at any time, or in any man-»er whatever; and if an artist be permitted to tax his era-ployer without his consent, with all the additional work bio iancy may suggest, there would be no end to it, it would appear unreasonable, at the first view, that the plaintiff .should not be entitled to compensation, tho’ the work war. • not included in the original contract, and was necessary and beneficial to the defendant. And that consideration, probably, induced the jury to find the verdict they did ; and but for the principle involved, Í should have been disposed to acquiesce. The unreasonableness is not howe ■ ver so apparent, when it is recollected this might have been, and probably was, a work of that common character, which did not require the'superintending skill of an artist- and which is usually done at a trifling expense.

The motion is therefore granted.

Justices Cokock, Nott and Huger, concurred',

Mr. Justice Gailti, dissented.  