This ease comes. to this court exclusively on questions of fact.
Many of the exceptions to the findings of fact are too general, and embrace more than one proposition or fact, but the sixth, seventh, and ninth findings may be sufficiently specific to present the only two questions on which the general legal conclusion mainly depended, namely, whether there' was an agreement by the parties (1) as to the price for which the main part of the work was’ to be done, and (2) as to the time the main part of the work was to be completed. On the general question, the testimony of the plaintiff D-wnccm, was positive that no agreement was made either as to price or time, and his testimony was corroborated by several other witnesses present at the time, among whom were the superintendent of the mill of the defendant and his mill-wright, who made the plans for the rebuilding of the mill.
The numerical majority of witnesses is not the test of credibility; but even if it were, in this case the majority of witnesses who testify that no contract was made, and who *44bad the best means of knowing, is decidedly with the plaintiffs. Besides, every probability is in favor of the fact that no contract, either as to price or time, was made, because the contract, as stated by the defendant, would require work to be done and materials furnished, honestly and fairly worth $2,713.28, for $1,400 only, and by the testimony of the millwright of the defendant himself the work could not possibly have been completed in the time fixed by the testimony of the defendant. There seems to have been no controversy whatever that the work was all done and well done, and the materials furnished and money paid and debts assumed on account thereof as charged in the complaint, and the reasonable value thereof as charged. The defendant made payments on the bills afterwards without objection. The testimony is overwhelming and vastly preponderating in favor of the plaintiffs and the findings in all respects, and yet we cannot say that this appeal has been -taken for mere delay or in bad faith, for there was some testimony in favor of the fact that such an agreement was made. Besides, the able and eminent counsel of the appellant appeal’s to have confidence in the appeal and argues the cause with plausibility. , We shall therefore decline to assess upon the appellant the statutory penalty for unreasonable delay, as requested by the learned counsel of the respondent in their brief.
By the Court.— The judgment of the circuit court is affirmed.