James Slater, Respondent, v. Samuel Emberson, Appellant

James Slater, Respondent, v. Samuel Emberson, Appellant. (Submitted April 14, 1876; decided April 25, 1876.) This action was upon at promissory note.. Plaintiff had contracted to repair a house for defendant; he rendered a bill fan $2,0.74:91), of: which- $1,670- purported to be for a balance due on the contract, and $404.91 for extra work. Defendant paid $175, in- cash.;; gav.e two notes, one for $850, which he paid, and the note in suit for-$11,000. Plaintiff understood that the cash and notes*, which.amounted to $2,025, were in full settlement, and that defendant, upon his deducting the forty-nine dollars- and- ninety-one cents from the bill, accepted the work as completed. Defendant testified that the bill was settled at $2,025,. but that it. was agreed, that if, on examination, it should be. found' that any of the work called for by the contracts was not completed, plaintiff was to complete it., The referee--found.that the:parties misunderstood each other; that no settlement was in fact mutually agreed upon; that of the work,, a portion to- the amount:of ninety-two dollars and thirty-eight cents was not done, and that defendant was entitled! to a deduction of" that amount from the amount of the bill The principal point argued on appeal was upon defendant’s .claim that the deduction should,have been made from the note; in other words, that plaintiff should deduct the forty-nine, dollars and ninety cents-alloyed on the alleged settlement, and the ninety-two dollars and thirty-eight cents for the deficiency. Hdd, not tenable;, that- no settlement having been, in fact, made, all that plaintiff was required to do, was to make good the deficiency. T. G. Swartwout for the appellant. I. T. Yale for the respondent. [MAJORITY — Sapallo, J.,] Sapallo, J., reads for affirmance. All concur. Judgment affirmed.