#### Angus Stewart *ads.*James O’Neale.

Tried before his Honor Judge Axson, City Court, January Term, 1837.

This was an action of assumpsit, for work and labor done by the plaintiff, for defendant.

Mr. Saunders a witness produced and sworn, deposed that he was working for Stewart, in 1834, as a bricklayer; that O’Neale was working there at the same time ; he cut away the floor and roof of the kitchen, for the chimney to passthrough; don’t know the value of the work ; he trimmed the second floor of the kitchen ; he also did some work in the front house, fixed the window frames in the east room down stairs ; witness did the brick work. O’Neale fixed a door frame in the entry that led into one of the large *267rooms. Witness believes that door had to be done over, does not distinctly recollect.

On his cross-examination he said he did not believe he had ever testified before about this work ; was called as a witness to some work done by plaintiff for defendant, to a large new building ; both works were going on at the same time : this work was finished first. Stewart had O’Neale sometimes working in the front house, sometimes in the house back. Knows nothing of distinct contracts ; both works were going on at the same time at one establishment; the works were not done on the same building ; believes most of the work in issue were repairs ; he repeated that the work was done at the same establishment, but not on the same buildings, they were under separate roofs ; there was no space between them : one was brick, the other wood ; the kitchen was a distinct building from both. O’Neale was attaching a *new*building to *the*old premises.

Mr. Dawson produced and sworn, deposed that he is a carpenter. Stewart was building in 1834. Witness and his father were working with O’Neale at Stewart’s ; does not know what was done to the kitchen ; in the front house the following work was done : Three window frames, one door frame, washboard and surbace, in east room first floor, and said room furred, and the windows were trimmed, &c., &c. The door frame was a large one, pannelled door '; was not at the time the work was done a judge of its value, but he recollects the work, and thinks he is now able to put an estimate upon it.

Each window frame he thinks was worth $20 $60 00

Door frame, 25 00

Furring the room, 12 00

Washboard and surbace, 20 00

All this work was done to the front building; the "door frame was altered by O’Neale himself; • the window frames were not bos frames.

On his cross-examination he said that O’Neale did a 'great deal more work to the back building; he was working about the hotel; all the work was done at the same time; those who worked in the front did not work in the back. Witness and his father worked in front; the window frames were made at O’Neale’s shop ; his father made them ; told him so. Witness and his father did the furring and surbace ; nobody else engaged ; cannot say what his father received. Witness worked only one week ; don’t know what his father’s contract was. At the same time Stewart had a variety of other people working at the establishment.

Paul Jones produced and sworn, deposed that he is a carpenter, and worked with O’Neale at Stewart’s, in 1834 ; knows that O’Neale trimmed the kitchen floor for a chimney to go through ; don’t know particularly what he had to do ; knows that a chimney was erected to the kitchen, and that O’Neale did the necessary carpenters work, for which, he thinks, $10 a reasonable price. O’Neale had to do over the architrans of the door, in the passage, and when altered it was a good piece of work.

On his cross-examination, he said, he was employed by ■ O’Neale *268by the day, not with reference to any particular work; worked at no other place for O’Neale, but at Stewart’s ; did different kinds of work at the hotel. There were four or five black, and two or three white hands employed in the back building ; for the front building O’Neale had separate hands employed by the job ; all the work at the hotel was going on at the same time ; never was interrogated about the work to the front building before ; knows nothing of any of the contracts between the parties, one way or the other; the work in the front building was done first.

Here the plaintiff closed his case.

On the paitof the defence, Mr. Petigru produced a record between the same parties, and contended that the subject matter of this suit was included in the contract there sued upon.

He also pleaded a discount of $58, which was admitted.

Mr. Matthews, a witness produced and sworn, deposed that Mr. Stewart applied to him after February, 1835, to do some work at the Carolina hotel — it was scattering work; it was repairing O’Neale’s work ; does not kuow it was O’Neale’s work, but from the description of the work given by the witnesses, some of the work he repaired was O’Neale’s ; he put in three box frames in the west room in the place of old ones he took out; he overhauled three windows in the east room; it v/as new work ; was not done in a workmanlike manner; he had to finish a part of the new building ; the overhauling was done at the same time, and the price was included in the general bill; the whole bill was $1,000.

On his cross-examination, he said he had to take off the moulding of the windows; his hands did it; there was considerable overhauling ; the building was rough cast after O’Neale’s work was done ; O’Neale had no notice of the overhauling, and there was no survey as witness knew of. Witness worked at Stewart’s in the summer of 1835 ; the overhauling was worth making a charge for; cannot say what it was worth, it is so long. Witness had to put new moulding, they did not shew out enough ; they were outside mouldings ; he did something also to the sash.

Here the case closed.

There were one or two questions of evidence raised ; but as they do not form a ground of appeal, 1 deemed it unnecessary to say any thing about them.

I charged the jury, that if they thought from the evidence, that the work claimed in this suit, was included in the contract which formed the subject matter' of the record produced, that the plaintiff was not entitled to recover in this action ; that he could not recover, even though, in point of fact, he had not received compensation for this particular portion of the contract; that the former recovery barred an inquiry into the fact; that the law would contend that he had received compensation ; but if they thought, they constituted separate and distinct contracts, it was a question for the jury, upon the evidence, to say, whether the plaintiff ought to have any thing, and how much.

1 recapitulated the evidence and left it to the jury, who found a verdict for plaintiff, for $E8.89.

*269The defendants counsel furnished me with the annexed grounds of appeal,

JACOB AXSON, *Recorder,*

*Grounds of Appeal.*

1. In finding that the work done upon the kitchen, and upon the east room of the Carolina hotel, was done under a different contract, from the work done on the rest of the premises.

2. In allowing for the three windows in the east room of the Carolina hotel full price, when it was proved that the work was not faithfully done, nor in a workmanlike manner.

PETIGRU & LRSRSNE, *Defendant's Attorneys.*

pETiGRU & Lesesne, for motion.

Yeadon & Macbeth, contra.

Filed 14th February, 1837,

In this case we concur in the recorder's log-al view j and perceive no reason to be dissatisfied with the verdict,

The motion is dismissed,

JOHN B. O’NEALL,

JOSIAH J. EVANS,

RICHARD GANTT,

A. P. BOTHER,

J. S. RICHARDSON,