Bond v. Monteleone

2 Teiss. 396, 1905 La. App. LEXIS 89

• Court: Louisiana Court of Appeal
• Decided: June 12, 1905
• Docket: No. 3732
• Status: Published

Opinion

DUPOUR, J.

The plaintiff sues to recover a balance due for work dene ill a hotel erected by defendant, repairs to the adjoining old building, and extra work alleged not to have been included in the contract.

The counsel for defendant argue that this case involves the •question of the appreciation of the testimony of the witnesses, but the opinion of the district judge leads us to the conclusion that the question is one of credibility of the witnesses.

' The testimony of the plaintiff is in its essential features, corroborated by other witnesses, and proves the work done and the price due.

Defendant argues that there is no satisfactory explanation offered for the discrepancy between the bills rendered by plaintiff on April ist and May ist respectively and the amount in suit.

On this point the district judge says:

“The statements of April ist and May ist do not concern the bills for extra work on the annex, amounting to $212, forming part of the basis of this suit. Plaintiff says, this work was done as piece work, upon the order of defendant and prior to January 20th, 1904' that defendant decided to make two more Such contracts for extras, and about the latter date ordered certain extras to be done by day’s work, he to pay for same on -pay rolls prepared by plaintiff and approved by the foreman of defendant. That when he presented defendant with the bills for extras the latter asked him not to include them in his statement, as some of the extras were occasioned by changes in the plan, and the he,, defendant, expected reductions to be made by other contractors on the building for work which had not been executed by them. This explanation is plausible. The bills were made out as directed by defendant.”

Defendant also urges that, as to a portion of' the claims, “it was agreed that the question of whether it was due or not due should be left to the architect who decided that it was not clue.”

This is answered by the facts that all the information as to work and amounts was not submitted to the architect, that he gave plaintiff no chance for explanation and acted absolutely ex-porte. His report, under such circumstances is worthless, and oí no binding force.

June 12th, 1905.

Without further discussion, and with the concluding statement that the trial judge states that the defendant’s testimony and that of his witnesses is improbable, unreasonable and discredited, we dismiss the matter.

It does not appear that the appeal was taken for mere delay, and, considering the conflict of evidences about which counsel might form different opinions, we shall not allow damages.

Judgment affirmed,