#### CARTER v. ADAMS.

Good work — mlpíied dotitrafit — the law implies only what is tisuai and custodial^,

Good work in one place is not necessarily good work every Where else. A contract to do good work, has reference to the kinclnf work, the price, and the place where to be done, and means that kind of wpfk whic^under all the attending circumstances, is held good where the work was to begone, in common acceptation.

The law only implies, from a mere engagement to do work, that it shall be done in the cdrii-> mon and usual way of doing such work, at the place where it was to be done.

Under a notice of setoff for money had and received, the defendant cannot recover for money paid on the contract, declared upon by the plaintiff, for damage on account of a defect in the work paid for.

Assumpsit, for the balance claimed upon a contract to do the mason work of a mill. Plea non assumpsit, and notice of setoff for money had and received, &c.

The contract was in writing, to do the work at a stipulated price per perch. The work was done and the mill occupied. It was admitted that the number of perches in the mill, at the stipulated price, amounted to *$1502*22,on which there had been $>1286 96 paid, leaving a balance at that price of *$215*26. The defence was that the work was badly done — that the sum paid was more than the work was worth, and the defendant claimed to recover back the sum overpaid.

A witness for the defendant was asked, how the work compared with other work generally?

*Stillwell*objected to the question.

*W. Silliman,*contra.

By the Court.

Good work in one place, is not, ex necessitate, good work every where else. The stipulation here is silent as to the kind of work, but the law implies a promise to do the work according to the' common method among workmen of doing that kind of work in that neighborhood. Good work on a mill in the city of New York, might be very different from good work for a mill in the backwoods. The law implies only what is usual and common, taking into view the place of the work, the use intended, and the price stipulated to be paid. You may therefore ask as to the quality of such work, compared with the price, in that section of country. The construction of the national road and of the canal,, has introduced amongst us a different style of work, from what *472generally prevailed before, but we cannot say that in common acceptation, that is the usual standard of good work.

*Stetson*and *TV.*Silliman, for the plaintiff,

to jury.

*Stillwell,*contra,

contended the work was not well done, the money paid was more than sufficient for the work done, and that the defendant was entitled to a verdict for the sum overpaid.

Wright, J.

to the jury. By the admissions of the parties, if the work has been done according to the contract, in the usual mode of doing such work in the country, the plaintiff is éntitled to your verdict for $215 26, and interest. It is urged that the work was not well done. You will inquire as to this. If unskilfully done, was it so done under the immediate direction of the defendants, or to their acceptance. If not, the defect is chargeable upon the plaintiff, and will reduce his compensation the amount of the defect, if not greater than the sum due. But you cannot give the defendant a verdict under his notice, for any balance of damage over the sum due, because it does not apprise the plaintiff of his intention to claim it.

Verdict for the plaintiff, $245 37.