Lyons v. Dymond

Wxly, J. This is an action for the balance of an account. The controversy as to the correctness of the account is only in relation to the items for ditching- which embrace the largest part thereof. The delense is that the work performed by plaintiff was not done according to the terms and conditions of agreement entered into by plaintiff, and that for the work as done the plaintiff was paid more than tlie value thereof j that the work was not completed at the time specified, some of it having to be done de novo, to the damage of $1000 to the defendants, and that by tlie amount paid irom time to time tbe plaintiff was overpaid for the value ot tlie work $938 83. The prayer of the answer is that the demand of the plaintiff be rejected, and that the respondents have judgment in reconvention for $1938 8? The court, rejecting the recon volitional demand, gave judgment foiplnintiff for $1481 67, the balance found to be due him on the account. The defendants have appealed. After a full examination of the evidence we have come to the conclusion that the judgment is correct. The account sued on by the plaintiff was rendered to him by one of the defendants, and the work now complained of as unsatisfactorily performed was received by the agent of the defendants. Their agent was on the premises during the time the work was being performed, and saw its progress from day to day. If it was unsatisfactory and not done according to the agreement, it should not have been received. If the items for ditching were not correct, the defendant Dymond should not have embraced them in the statement of account which he rendered to the plaintiff, and upon which this suit was instituted. There is no error shown for thus inserting these items in the account. On the contrary, from the defendant Dymond’s own sworn statement, he was aware of the objections he now urges to them; yet ho voluntarily debited himself therewith in the account rendered as aforesaid. Add to these important facts the testimony of the witnesses in behalf of the plaintiff, and there can be no doubt of the correctness of the judgment now under revision. In the face of these facts and the testimony of the witnesses corroborating- them, we attach but little weight to the evidence of the defendant Dymond, the most important witness in behalf of the defense. Judgment affirmed.