
    Forkner v. Purl.—In error.
   ASSUMPSIT by Forkner against Purl. Trial before a justice of the peace, and judgment for the plaintiff for 10 dollars. Appeal to the Circuit Court and judgment for the defendant.

The evidence is not disclosed by the record. It appears by the instructions, that the suit was for the value of certain plastering done by Forkner for Purl.

The Court instructed the jury that if the plastering was done under a written contract, by which Forkner agreed to plaster a certain house for Purl, for a specified price for the whole, and Forkner voluntarily abandoned the work before it was finished without fault on the part of Purl, they should find for the defendant. Also, that if Purl failed to furnish materials as he had agreed to do, by the contract, or refused to permit the plaintiff to finish the work after he had begun it, they should find for the plaintiff the value of the work done, but if the plaintiff ran out of lime and the defendant failed to furnish him lime for half a day, but then furnished it, it would not be such a failure to furnish materials as would authorize the plaintiff to abandon the contract and recover for the work done. The Court also instructed the jury, that if the work done was accepted by the defendant, the plaintiff might recover for its value; but the fact that it was done on the house of the defendant, on his premises, and the defendant must use it, or tear it off, would not be such an acceptance as to make him liable to pay for it, if the plaintiff voluntarily abandoned the contract.

We cannot say these instructions are erroneous, as they may have been proper under the evidence, which is not before us. The judgment is affirmed.  