MORTON vs. POLLARD, 9 La. 174

Martin, J., delivered the opinion of the court. This is an action to recover from the defendant the sum of six hundred and seventy-five dollars as the price of work and labor done in building a mill for the latter, in pursuance of a written agreement between the parties.

The defendant resists payment on an allegation that the work done on the mill had been so defectively and unskilfully ■ executed, that the .plaintiff, so far from having complied with his contract, • and benefited her by erecting and completing her mill, by his delay and bad workmanship, had caused her material injury, and was the means of losing her crop. She claimed damages in reconvention. The plaintiff had a verdict and judgment, from which the defendant appealed. In the argument of the case, the counsel for the appellant has drawn the attention of the court to two bills of exception.

The first is taken to the admission of evidence'offered to prove the value of part of the work and labor done. The second bill of exception, is taken to the refusal of the judge to receive evidence, offered to support the claim and plea in reconvention. In an action on a special agreement, for the price of putting up a mill, evidence of the ’value of the work and labor done on it, will not be admitted, the parties having agreed on the price.

There is no law requiring a party, claiming damages for an injury resulting* from the nonperformance, or unskilful performance of a contractforwork and labor to be done, to first put the delinquent party in mora. We ave of opinion the district judge erred, in excluding the evidence, in both instances. The parties having agreed on the price to be paid for the work and labor in putting up the mill, evidence of the value of the work done, is inadmissible.

The court declared it as its opinion, that the violation of the contract for which damages were sought in reconvention, was passive and not active, and that it should be first shown that the plaintiff had been put in mora for the non-performance of his contract, before the defendant in reconvention could recover damages.

This court is unacquainted with any rule of law, which requires the party claiming damages for an injury sustained on account of the non-performance or defective performance of a contract for work and labor to be done, to first put his adversary in mordí, before he can be permitted to prove his damages.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the verdict set aside and the case remanded for a new trial, with directions to the judge not to allow evidence of the value of the work on a quantum meruit; nor to reject evidence in support of the plea in reconvention ; and that the plaintiff and appellee, pays costs in this court.