Brown v. Burr

Per. Curiam,

The appellant complains that the charge of the learned judge was misleading. The answers to points presenting the legal questions involved are not complained of, but it is alleged that the charge as a whole was calculated to prejudice the case of the defendant. After a careful examination of it we are not able to reach such a conclusion. The plaintiff sued to recover the unpaid balance due him for work in preparing plans and drawings for a building erected by the defendant. The defence alleged that the plant for heating the building was unsatisfactory, and that as this had been built after drawings made by the plaintiff, the fault was his and the loss to the defendant should be set off against his demand. This raised questions of fact that were for the determination of the jury and were fairly submitted to them. It appeared that the plaintiff had, after the heating works were put in, given to the plumber a certificate to show that the work was finished in accordance with the plan. The defendant sought to make use of this fact to fix the plaintiff with liability for the defective work of the plumber, without putting the certificate in evidence or proving its loss. The learned judge was right in holding that the certificate itself should be put in evidence or accounted for; and that the answer of the plaintiff that he had given a certificate of the general character stated in the question was not to be used as proof of the contents of the certificate without some further showing.

It was further alleged by tfie defendant, that he had given to the plaintiff one hundred and fifty dollars, by check, to apply upon his work, in addition to the two hundred dollars credited to him. Whether this check was part of the two hundred dollars the plaintiff had acknowledged paid to him, or was in addition thereto, was a question of fact, and it was not error to submit it to the jury upon the evidence.

The assignments are not sustained and' the judgment is affirmed.