
    DYER vs. SEALS.
    Western Dist.
    
      August, 1834.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Where the question is presented, whether a workman who sues on a specific contract for work and labor, can give evidence of the work really done, and recover its value, although the job was not completed according to contract, when the employer received the work in an imperfect state, and when sued on the contract, demands damages in reconvention for delay in doing tho work, and for its not being done in a workmanlike manner ? Held, that this case is similar to that of Loreau vs. Declouet, 3 La. Reports, 1; and that the evidence is admissible, and the employer, having received the work, is bound to pay the value in the condition it is-deliverod.
    
      The plea in reeonvention, authorises the plaintiff to give in evidence the value of the work done for which he sues, to repel the demand for damages against him for the non-performance of his contract.
    Where the amount found by the jury was not liquidated at the inception of the suit, interest is not allowable by law. The law does not allow interest on unliquidated sums.
    Where the verdict and judgment allows interest on an unliquidated sum, the appellee cannot avoid a reversal of the judgment and payment of costs, by filing in the Supreme Court a remittitur of the interest so allowed.
    The plaintiff alleges, he entered into a written contract with the defendant, to build for him a cotton gin, for which the latter bound himself to pay him the sum of five hundred and fifty dollars. He further alleges, he has performed his part of the contract according to the terms thereof, and completed the gin within the time limited; and that the defendant refuses to pay him. He, therefore, prays judgment for the sum of five hundred and fifty dollars and costs.
    The defendant pleads a general denial; admits, and annexes to his answer the written contract to build the gin, but expressly avers that the plaintiff after commencing the work quit it soon after, and left the country, against the consent and remonstrances of this defendant; that by reason of the misconduct and failure of the plaintiff to build his gin in time for his crop, he has sustained damages to the amount of five hundred and fifty dollars; and that the plaintiff is further indebted to him for various articles furnished, according to an annexed account, amounting to four hundred and nine dollars and twenty-five cents, making in all the sum of nine hundred and fifty-nine dollars; for which he prays judgment against the plaintiff in reconvention.
    The plaintiff sued on his written contract, in which he bound himself to build the gin and gin-house for the defendant, by the 1st of October, 1833, unless prevented by sickness, in which case he was to have longer time. The evidence shows, the work was badly done, and the gin not entirely completed. The defendant attempted to gin his cotton on it, but he had to employ a person to finish and fix the press, before he could press the cotton after it was ginned. The whole evidence showed, the gin was not completed according to the contract. The account of defendant, annexed to his answer, was proved, with the exception of some items, which were stated to be charged too high.
    Where the question is presented whether a workman who sues on a specific contract for work and labor, can give evidence of the work really done and recover its value, although the job was not completed according to contract, when the employer received the work in an imperfect state, and when sued on. the contract, demands damages in re-convention for delay in doing the work and for its not being done in a workmanlike manner ? Heldy that thiscase is simLoreau vs. Be- « the evidence is admissible and the employer th™Sv¿rk,elVe¡s bound to pay the value in. the condition it is deli-
    
      The jury returned a verdict for the plaintiff, in the sum of three hundred and fifty-six dollars, without finding any thing on the plea in reconvention.
    The defendant’s counsel moved for a new trial, on the following grounds:
    1.The jury erred in finding a verdict for the value of the work and labor done, when the suit was brought on a special contract.
    2. The verdict is contrary to law and evidence, in not finding or allowing any thing on the plea in reconvention.
    3. There was no proof of the value of the work done by the plaintiff.
    The motion for a new trial was overruled, and judgment rendered in conformity to the verdict. The defendant appealed.
    
      Lawson, for the plaintiff.
    
      Muse, for the defendant and appellant.
   Bullard, J.,

delivered the opinion of the court.

The appellant relies for a reversal of the judgment on five points, filed in the record.

The three first may be considered together, as presenting to the court the question, whether a workman who sues on a specific contract for work and labor, can give evidence of the work really done, and recover its value, although the job was not completed according to contract, when the employer received the work in ah unfinished state, and when sued on the contract demands damages in reconvention, for delay in doing the work and for its not having been done in a workmanlike manner-.

plea in reconvention anthonses the plaintiff to give vaiueldCof6 the 1one for to repel the de.^"agaiXhim fornon-performatice of lus contract.

amX foundby the jury was not liquidated at the inception of the not\iiowab?e by doe’s not^aiiow interest onuniiquidated sums.

Where the mentAllows1 mqSdated 811 sum" the appellee cannot avoid a reversal of the paymentof costs') Supreme "court a remittitur of the interest so allowed.

This case is similar, in its essential features, to that of Loreau vs. Declouet, 3 La. Reports, 1; in which this court held, that in commutation contracts, when the reciprocal obligations are to be performed at the same time or one immediately • after the other, if one party goes on to perforin his part but does not complete it, as agreed on, and the other receives the thing contracted for, he is bound to pay the value ja the condition it is delivered,

. The plea in reconvention, authorised the plain tin to give m evidence the value of the work done, to repel the demand for damages against him for the non-performance of his contract. o o r The jury tried the whole case, and after allowing to the defendant about two hundred dollars, rendered a verdict in favor of the plaintiff, for the balance, ^ y

The fourth point made by the counsel for the appellant, is that the verdict of the jury on the plea of reconvention, is contrary to law and evidence. It is urged, that a greater amount of damages was proved, than has been allowed by the jury. One witness, it is true, stated as his opinion that ■ ^ defendant had suffered greater damage in the loss of an ° early market, and the fall of pnce. But the jury was not bound to adopt the opinion of the witness, which may have been formed on taking into view remote consequences which could not }iave. entered into the contemplation of the parties when L 1 the contract was made. The jury took into view the limited amount of crop to be ginned, and the delay which occurred, an(^ formed their opinion according to the facts proved on the trial. We are not enabled to say, that their verdict has done evj¿|en(. injustice to the defendant.

The last point appears to us well taken. The amount found by the jury was not liquidated at the inception of the su'b and interest is not by law to be allowed on unliquidated sums. The appellee endeavors to obviate this objection, by x A J J filing in this court a remittitur as to the interest allowed by the judgment. We are of opinion, that this cannot be done. This court must pronounce on the judgment as it was rendered, independently of any modification of it by one of the ,. .. ,, , parties pending the appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff recover of the defendant and appellant the sum of three hundred and fifty-six dollar's, with costs in the District Court; those of the appeal to be paid by the plaintiff and appellee.  