delivered the opinion of the court.
This suit is brought to recover the value of work and labor performed by the plaintiffs under contract with the defendant. They obtained judgment in the court below, from which the latter appealed.
The petitioners recite an order or draft drawn in' their favor by the defendant, on J. D. Baldwin, who, according to *306the evidence, was the prime undertaker of the work, a part of which was done by the plaintiffs, at the instance of Allison, who appears to have been a sub-contractor. The only defence set up against this claim, is want of legal diligence on the part of the plaintiffs, in endeavouring to collect the amount of the draft from the drawee; which, perhaps, might prevail, if the instrument were to be considered in the light of a commercial bill of exchange.
Ill an action for work and labour performed under a contract, the plaintiff reciting in liis petition an order or draft not negotiable, drawn in his favor by the defendant on a third person, and the defendant denying due dilligence in the presenta tion of the draft, and claiming a' discharge on that' ground; held that the draft was not to be considered as a commercial bill of exchange, but was merely an indication of a settlement between the parties, showing the amount really due on the contract, and for this purpose it was admissible in evidence.We are however of opinion that the court below was correct in refusing to it this character. It was not drawn in a negociable form, and may properly he considered as merely indicative of a settlement between the parties, showing the amount really due to the claimants on that contract at that time, and for this purpose was properly received in evidence. The allegation in the petition of the existence of the previous contract, and performance on the part of the plaintiffs, is not denied.
Ten per cent, is claimed as damages in the answer to the appeal, but we do not believe that the circumstances of the case require that any penalty should be inflicted on the appellant.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court he affirmed, with costs in both courts.