The plaintiff sued defendants in assumpsit before a justice of the peace. His claim as stated in his bill of particulars aggregated $66, and he recovered a verdict for $57. Upon a dilatory appeal by the defendants, allowed by the circuit court, the defendant was allowed to file a bill of particulars and notice of recoupment and set-off. A trial resulted in a verdict for the plaintiff of $56.78 and judgment followed, and the defendant has again appealed.
The defendants were allowed to introduce evidence of all their claims in set-off and recoupment, hence the dis*130cussions and rulings relating thereto are unimportant. The gist of the claim is that the defendants employed the plaintiff to excavate a cellar, and sewer, and that he did not fully perform his contracts, and that defendants were put to expense in relation thereto. The only item that they were not allowed- to take the verdict of the jury upon was a claim for the loss of a pickaxe and one or two other tools occasioned by' the caving in of the sewer which they were excavating. The court excluded this evidence upon the ground that these items were not proper either as set-off or recoupment. We are of the opinion that the court erred in this exclusion of testimony. This loss contributed to the cost of doing the work, and if the loss was without fault or negligence, the jury would have been justified in including it in damages arising from plaintiff’s nonperformance.
It is unnecessary to refer to other questions. The judgment is reversed, and a new trial ordered.
Blair, Montgomery, Ostrander, and Moore, JJ., concurred.