Benjamin v. Heeney ( 1869 )

Mr. Chief Justice Breese

delivered the opinion of the Court:

This is a case in which much testimony was heard, and the most material portions of it given by the parties themselves. To say it was conflicting, is saying no more than usually happens on such occasions, calling upon the court, sitting as a jury, to exercise its best judgment and keenest scrutiny to arrive at the truth. So many matters are to be considered by a court when so called upon, and of a nature so peculiarly fitted for the examination of a jury, the decision, in the absence of all error on a point of law, is regarded by all courts, this especially, as a termination of the controversy. Though the testimony was conflicting, yet we are of opinion its preponderance is in favor of the finding.

The certificate of the architect, though made only to Sprague, the owner of the house, was never presented by the contractors to him, but to appellants, who paid them without any demur, and their payment became a credit to them on the rent due to Sprague, and to become due him.

When the contract was entered into for repairs, it was expressly understood appellants were to pay for them to the extent, certainly, nf eight thousand dollars, and it is stipulated in the lease that they were to have repairs made and at their expense, to be allowed on rents accruing. All done beyond the contract for these repairs, was done by request of appellants, or one of them, and their liability to pay for them was fixed. The amount of the recovery was for additional repairs done under the orders of Benjamin, one of the appellants.

The work was done on Sprague’s property, but it is incontestable that, appellants were to pay for it.

Where so much evidence was heard as in this case, and so much of it sustaining the finding, we should depart from long established principles should we interfere to disturb it.

The judgment must be affirmed.

Judgment affirmed.