Morgans v. Adel

FOOTE, C.- This is an action for work and labor performed by the plaintiff as a painter for the defendant. Upon a cross-complaint the court below rendered judgment for the defendant, which, upon motion being made for a new trial, was modified in favor of the plaintiff to the extent of lessening the sum of money for which the original judgment was given, and, the defendant agreeing to the reduction thus made, the motion for new trial was refused. From the judgment and order this appeal is prosecuted.

It is claimed that the court erred in finding that there was a special agreement between the parties as to the manner and amount of plaintiff’s compensation. There was a very decided conflict of evidence upon the point, and it is evident from the record that the very experienced judge who tried the cause had a better opportunity than we can have to determine upon which side preponderated the weight of testimony; hence his findings should not be disturbed. The objections to the introduction in evidence of the two books, entitled “Paint-shop Book, 1882,” and “Paint-shop, 1883,” and of Exhibit [865]A of the defendant, at folio 104 of the transcript, are untenable. They were original books of entry of the parties, and shed light upon the question as to what charges were made, the work performed by plaintiff, and the amount thereof, so that there might be ascertained what was his fair proportion or percentage for his labor. We perceive no error in the record, and advise that the judgment and order be affirmed.

We concur: Belcher, C. C.; Hayne, C.

Per CURIAM.—For the reasons given in the foregoing opinion the judgment and order are affirmed.