Robert Moores & Co. v. McConnell

Labauve, J. The plaintiffs claim against the defendant the sum of .$650 39, with interest from August 8th, 1854, as a balance due for lumber furnished, principally under a contract, and partly on account. The defendant in the first place answers by a general denial, but ad" mits that he made a contract with plaintiffs, by which said plaintiffs bound themselves to furnish all the lumber to construct the fence around the House of Refuge, for the sum of $1,700. He avers that said plaintiffs failed to supply him with all of said lumber; that said plaintiffs were put in default for non-compliance with their contract; that he had to purchase lumber from other persons; that the lumber was not delivered at the place agreed to, but to a considerable distance therefrom, &c. He further says that he has paid said plaintiffs, on account of said contract, the sum of $1,336, and that he holds a promissory note of said plaintiffs for $100; making in all $1,436, which he avers is more than a full compensation for all the lumber furnished to him by said plaintiffs. He says he has sustained damages to the amount of $586 50, in consequence of the plaintiffs not complying with their contract; which sum he pleads in reconvention, and prays judgment accordingly. The District Judge, after hearing evidence, testimony and arguments of counsel, gave judgment for plaintiffs as prayed for, but omitted to allow the defendant a credit for $36 50, for which the plaintiffs entered a remittitur at once bofore the court, and now pray that the judgment be modified accordingly. We have not been favored with briefs of counsel, either oral or written. We are of the opinion that the judgment of the court below is correct, exclusive of the omission in not allowing the credit alluded to. It is therefore adjudged and decreed that the judgment appealed from be amended so as to allow the said credit of $36 50, and that as amended it be affirmed, with costs. Jones, J., absent,