John Hickler, Respondent, v. Thomas Leighton, Appellant

John Hickler, Respondent, v. Thomas Leighton, Appellant. (Argued June 18, 1877; decided September 18, 1877.) This' action was brought to recover a balance alleged to be due plaintiff upon a contract for certain mason work done by him in the construction of a bridge, in the city of Rochester, for the construction of which defendant had a contract with the city. " Also, for extra work and materials done and furnished by plaintiff. Defendant set up an accord and satisfaction. To sustain this, he produced upon the trial bills receipted. Plaintiff, in reply, gave evidence to the effect that the receipts were given at defendant’s request, he saying that he wanted the bills receipted that he might use them in a settlement with his partner King, as well as in his settlement with the city. Defendant thereupon testified that he had no partner. He was asked, upon cross-examination, if King had not claimed to be a partner, and bad not brought suit to establish his rights as such. This was objected to; objection overruled and exception taken. Held, no error; that the claim and litigation were competent, not only as detracting from the force of defendant’s denial of the partnership, but also it supported plaintiff’s version of the transaction. Defendant, to support his theory of a settlement and release for less than the contract price, claimed that the work done by plaintiff was not properly done, and that there had been a delay in completing it by which he had sustained damage entitling him to a deduction. This was disputed by plaintiff, and his evidence tended strongly to show that the claim was unfounded. It also appeared that defendant claimed and received from the city a large sum in excess of the contract price. This was submitted to the jury by the court in its charge as a fact for their consideration. Held, no error; that the evidence was competent and was properly submitted to the consideration of the jury as part of the res gestae, and as bearing upon the main issue. Geo. F. Danforth, for appellant. W. F. Cogswell, for respondent. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance. All concur. Judgment affirmed.