delivered the opinion of the court:
By his brief appellant presents but three points: that the verdict is contrary to the evidence; that it is excessive; and that there was error in refusing to give the fourth instruction asked by appellant.
Appellees, who are architects and partners, brought assumpsit against the appellant, by whom they were employed to prepare plans and specifications for and superintend the erection of a building. There is no denial of the rendition of services, but it is denied that there was proper supervision, and it is insisted that many things which were to have been put in the building were omitted and different material was used, and it is claimed that appellant might recoup, etc. This question, and that presented claiming the damages are excessive, are questions of fact conclusively determined by the judgment of the Appellate Court.
The refusal of the court to give the following instruction is assigned as error:
“The jury are instructed that if they believe, from the evidence, that the plaintiff in this case did not use reasonable care and diligence in the performance of his work as an architect, and the buildings of defendant were not properly constructed, then the defendant may recoup or set oft the damages he may sustain on that account; and if, from the evidence, the jury find the damages sustained are equal to or greater than the amount plaintiff might claim for services, then the jury should find for the defendant.”
On this question the Appellate Court held the instruction properly refused, saying: “If the jury had found that the buildings were improperly constructed, and that the plaintiffs had not exercised reasonable care and diligence, then, under the instruction, they must have found for the appellant, even though they believed that the improper construction was not the fault of appellees. The instruction is erroneous in another respect. Appellees’ evidence showed that the carpenter’s and painter’s work was not complete, and that the appellant accepted the work with knowledge of its incompleteness. This evidence the court is, by instruction, asked to ignore and in effect to exclude it from the jury.”
We concur in that view', and the judgment of the Appellate Court for the First District is affirmed.
tJudgment affirmed.