#### SOMERBY *v.*TAPPAN.

Workmanlike — implied contract — chimney flues — masons’ rules — rule of damages.

Where a mechanic undertakes to build a chimney, the law implies that he employ in the work competent skill to effect the end, and thathe proceed according to the usageof the trade. Q,uere:if there beany rule among masonsforconstructingchimnies.

If the work done is useless for the purpose intended, the damages should make good the expense of rebuilding, the injury to the house, loss of rent, discomfort, and the expense of obtaining legal redress.

Case for unskilfully building the chimnies of a house so that plaintiff had to pull them down and rebuild them. Plea not guilty.

*230On the part of the plaintiff testimony was offered, that the defendant built a three story brick house for him, and was to do it in a workmanlike manner. When finished, and the family had moved in, it was found that the chimnies would not carry smoke, and the family had to move out, the whole chimnies to be pulled down and rebuilt, at an actual expense of about $200; besides loss of rent, at the rate of $500 a year, and vexation. When pulled down, the chimney flues were found very irregular, and varying the size of the opening in different places. They were as large again at the throat, as they were five feet above, were two or three feet by twenty inches at the throat, and contracted to six or eight inches by twenty at the ceiling of the first story. They could not be remedied without pulling them down to the basement. They were pulled down and rebuilt, and then carried smoke well. The common rule for such rooms as these, was four feet openings for the fire places, and 12 by 16 inches for flues. They could not carry smoke as first built. The plaintiff’s damage was estimated at more than $350.

On the part of the defendant, one witness testified that the plaintiff told him he was his own architect, and several workers in brick that they knew of no rule of the trade for constructing chimney flues, and that they had known several as irregular as these were, carry smoke well.

' To rebut this evidence, the architect of the building was sworn and testified that the plaintiff was not the architect, and that the architect in the usual course of the trade had nothing to do with constructing or directing the size of the chimney flues. The rule of the trade was to preserve a uniformity in the size of the flues, after they were formed, &c.

*Fox*and Storer, argued to the jury, for the plaintiff.

*Ga%lay<,*contra.

Wright, J.

to the jury. The plaintiff complains that the defendant agreed to construct a house for him in a workmanlike manner, without any thing being expressly stipulated to that effect. If he contract to build a chimney, the legal effect of the *contract*is that he shall employ in the work sufficient skill, and construct the chimney according to the received rules of the art he professes to practise, in order to effect the desired end, which is to carry off the smoke. That end may not always be reached, even in the ordinary method. Smoke left to itself will ascend perpendicularly; but it is liable to be diverted by obstructions, and by currents and eddies of air. It is claimed by the defendant, that masons have no rule of *231constructing chimney flues, and that these flues . were of a kind which carried smoke in some places, and therefore the defendant was not liable, because the work was done according to the usage of the trade. It is submitted to you to say upon the evidence if it be true, that in the structure of chimnies, there is no rule ofthe trade or art. Is that true as to any calling? Can any trade be carried on without some rules for its government? If so, what does the apprentice learn, or the master teach, as the reward for the service of the apprentice? What is the difference between the master workman, and the mere tyro? I have said the mechanic undertakes to bring to the performance of his work the requisite skill of his profession, and if he do not, and fail, he is liable for the consequences. In this case, the obligation was to build these chimnies skilfully, according to the approved usage of the trade. You will inquire, has he done so, or has he so negligently performed the work, that it was useless for the purpose for which it was intended? If there has been a failure in the instance before you, owing to the negligence or want of skill of the defendant, he is responsible to the plaintiff for the damage incurred in altering the chimnies, the loss of rent, the discomfort he has suffered, and the expense of obtaining redress.

If, on the other hand, you find this work done skilfully, or accor- • ding to the plaintiff’s direction, he is not entitled to a verdict, but must bear the loss himself. The questions before you are to be decided solely upon the evidence, without reference to the situation or character of the parties, or to out of door rumors. With these you have nothing to do.

The jury were out from eight P. M. until the noon of the next day without being able to agree, and were then discharged.