#### FREEMAN v. GALBRAITH.

Cross suits — appealed causes to take place in court according to their entry there — transposing causes — portraits—likenesses—acceptance.

When tbexe are cross suits before a justice and both are appealed, they will be decided in the Court of Common Pleas in the order they are docketed there, and if the appellant in the suit first commenced, desire to keep the suit brought in advance of his in court, he should hold back his appeal until the other is entered.

The court will not transpose such cases when entered, nor direct their trial out of their order on the docket.

Where an artist contracts to paint likenesses, he is, like others, bound to fulfil his contract, and can only recover his pay when he has done so.

Qitere. If the likenesses be barely such that intimate acquaintances would know for whom it was taken, if that is sufficient to entitle the artist to pay ?

Because the employer sees the painting in progress and pays part of the price, it is not necessarily to be inferred that he judged of the work and accepted it: but if he does accept and pay he cannot recover the money back*

Error to the Common Pleas. Freeman agreed in writing to paint in oil, on canvass, good and true likenesses of Galbraith and his wife, for sixty dollars, to be paid when the work was done.

Freeman sued Galbraith for his pay before a justice of the peace. He obtained a judgment and the defendant gave bail for an appeal to the Common Pleas. Galbraith then brought suit on the contract before a justice and obtained judgment. Freeman appealed the case to the Common Pleas.

Both cases were docketed at the next Court of Common Pleas, but the suit brought by Galbraith was first docketed.

- Galbraith declared in the common money counts in assumpsit and also upon the special contract, averring his readiness to receive the likenesses and pay, but that the likenesses were not good and true, and claimed one hundred dollars damages.

Freeman pleaded non-assumpsit, and attached to his plea a notice *592of a former recovery in the same controversy, in the suit by him before the justice.

On the trial the plaintiff, Galbraith, proved the contract, and offered evidence to show the work unskilfully done, and the likenesses unfaithful.

Freeman then proved that *Galbraith saw the work*while in progress, and without complaint paid twenty dollars on account of it. When the portraits were taken home the likenesses were good, but Galbraith requested their alteration to suit the light of the room in which he intended to hang them. Freeman remonstrated, and stated that such alterations would spoil the likenesses; but under the express directions of Galbraith he altered them. It was admitted that Freeman first sued before the justice and got a judgment, which was appealed, and the suit was still pending in the Common Pleas. Freeman’s counsel moved the court to dismiss Galbraith’s suit; but the court overruled the motion. They then moved to have it placed first on the court docket and first tried, which was also refused. They then prayed *the court to*instruct the jury, *that money*paid under the circumstances of the case in the progress of the work, could not be recovered back. This the court refused, but *did*instruct the jury, that money paid on account of work on its progress, might be recovered back, if the work turned out to be useless. The court also charged that an artist was required to bring to his work reasonable skill, and if the likenesses were such as to be recognized by friends, they were sufficient, as the law did not require they should be *exact*likenesses. Bills of exceptions were sealed and a verdict and judgment for plaintiff'. Freeman now seeks to reverse the judgment for error.

*Conover*for the plaintiff'in

error made the following points:

1. That as the money was paid with a full knowledge of the artist’s skill, it could not be recovered back.

2. That the work was spoiled by Galbraith’s direction, and at his risk.

3. That the court should have dismissed the last suit or transferred the cases on the docket, and tried Freeman’s suit first.

4. That the instructions given by the court to the jury prejudiced Freeman’s rights.

tie cited *Com. on Con.*303, 325, 6, and from 336 to 340; 3 *O. R.*62; 5 *O. R.*387; *Gould's PI.*283, 4; 7 *John. Ch.*182; 2 *Pet. Con. R.*608.

*Storer*contra.

*593By the Court.

The objections to these proceedings will be considered in their chronological order of' occurrence.

At the trial it was first admitted, that Freeman’s suit was first commenced, and decided before the justice; yet the court refused to dismiss the suit, transpose them on the docket, or order the first suit to be first tried. Did the court err in this? The defendant below has no legal right to dismiss his adversary’s suit, because he himself had a suit pending upon the same contract. If any question could arise on that account, it was either matter in *abatement*to be pleaded, or for a motion touching .the judgment for costs. Why the youngest cause was first docketed in the Common Fleas, the record does not show. It most probably resulted from the act of Freeman who now complains of it. He was appellant in the second suit, and if he had desired his suit should maintain its place on the doeket according to its age, he should have forborne the entry ef his own appeal, until the first was entered. Having chosen to docket the youngest cause 'first, he must abide by it. The law requires the clerk to .place causes on the trial list .in the order they are brought into court. From any thing before us no error is seen in refusing these motions.

2. If the evidence satisfied the jury that the work was accepted by Galbraith as done in conformity with the contract and was so paid for, he could not recover the money back; but the bill of exceptions neither shows that state of case, nor any request of the court to instruct the jury upon it. It need not be necessarily inferred, because the employer saw the work when in progress and paid part of the money, that he judged of the skill employed, and sanctioned it as in accordance with the contract. How could he judge of a likeness in the incipient stage of the picture, before the finishing touches of the artist were applied to it. The court could not cerrectly charge as requested, and we think the charge given, substantially correct.

3. The court charged, that the artist was required to bring to his work only reasonable skill — that exact likenesses were not required; and if these were such as friends would recognize, they were sufficient, an exact similitude not being required. Did this charge prejudice the artist as he complains? We think it very much in his favor, if erroneous. It is saying, that the artist is not required to make an *exact likeness,*or resemblance more than sufficient to enable a particular friend to tell who it was intended for. This certainly goes far enough. We hold him, like all other persons, liable to perform his contract, and if he contracts for an exact likeness, he can only recover when he has completed one; but it is not to d$*594cide this point in the cause. It is sufficient that the court did not err in prejudice of the plaintiff’s rights. The point mainly argued, does not arise on the record, viz. That the pictures were spoiled by direction of Galbraith. Of course we cannot raise the point to decide it.

The judgment is affirmed with costs.