Assumpsit upon the common counts for *165work and labor. Pleas, the general issue and payment. Trial by jury, and verdict for the plaintiff. Motion for a new trial overruled, and judgment upon the verdict.
S. B. Gookins and W. D. Griswold, for the plaintiffs. J. P. Usher, for the defendant.The evidence and instructions are upon the record.
The work sued for was the construction of a section of the Wabash and Erie Canal. The Court instructed the jury that “the parties having agreed to make the certificate of the inspector conclusive between them in respect to the amount of work done, if the said inspector gave his certificate of the said amount, and the plaintiff acted upon it as a final estimate, said certificate is conclusive upon the parties; and if the defendants have paid the amount found due upon such final estimate, you should find for the defendants, unless you find that said certificate was predicated upon either fraud or mistake in the inspector.”
The latter clause of this instruction is objected to by the plaintiff.
We think the instruction right. But if wrong, the evidence shows the judgment was right; and it is affirmed, with 10 per cent, damages and costs.