This suit was instituted for the sum of $11,248 60, or thereabouts, alleged to be due by the defendants, for work and labor performed by plaintiff in erecting an extension levee on the plantation of defendants, during the years of 1851-2, and for provisions, cooking utensils, tools, etc., sold them for the use of their plantation 81st January and 1st February, 1852.
The defendants admit that they entered into a contract with O'Shannessey & Daly for the construction of a levee, and that the work was performed, but aver that all the work done for them and all the materials received by them from those engaged in constructing the levee, have been fully paid for.
In a supplemental answer, the payments relied on are set forth.
The case was tried by a jury, who rendered a verdict in favor of plaintiff for $7,674 46 for work and labor done on the levee, and for the sum of $893 on the account sued on, with interest from judicial demand. The court below approving the verdict of the jury rendered judgment in conformity thereto, from which judgment this appeal has been prosecuted.
Wo find in the record some twenty bills of exception, or more, taken to the rulings of the Judge on the trial, but deem it unnecessary to examine all of them, as the Judge appears generally to have decided correctly, and no principle of law would be settled by such decisions, which is not familiar and of frequent application.
In the 9th bill of exception, the question is presented whether or not, the evidence offered by defendants to establish payment was properly rejected.
*444It has been seen that in the original answer, payment was pleaded generally. In the amended answer^ the names of the persons to whom the payments were made and the anjounts paid, were specifically set forth, and in many instances the dates of such payments. A portion of them, however, (those referred to in the bill of exceptions No. 9) were stated in the answer without reference to the date of payment, though it was expressed that the several sums were paid at the request of plaintiff to the persons named, who were hands in his employment.
The District Judge being of opinion that the plea of payment was not sufficiently explicit as to dates and the manner of payment, rejected the evidence. We think that in coming to this conclusion, he construed too strictly the rule which requires that payment should he specially pleaded and with sufficient certainty to prevent surprise. We think that the allegations gave sufficient notice that defendants would prove payment of the amounts set forth, to the persons indicated. The verdict and judgment we think fully sustained by the evidence before the jury, but inasmuch as evidence of payments made, which if proved, would have further reduced the demand of plaintiff,, was improperly rejected, the case must he remanded to enable defendants to offer such proof.
We have taken the course of affirming the judgment with a qualification, because the case was extremely complicated, occupying a great deal of time in the trial, and appears to have been very accurately considered by the jury. To make this verdict fruitless, would impose unnecessary expense upon the parties and would not promote the ends of justice.
It is for these reasons, ordered,, adjudged and decreed that the judgment of the District Court, in so far as it establishes the amount to which plaintiff is entitled on his respective claims, to wit: $14,470 96, and the credits to which defendants are entitled, by virtue of payments proved,, to writ: the sum of $6,903, be affirmed, and that the case be remanded solely to ascertain to what further credits, if any, defendants are entitled by virtue ©f payments alleged by them, in their amended answer, to have been made,, with instructions to the District Judge not to reject the evidence offered, under the amended answer, to establish the items contained in bill of exceptions No. 9,, on the ground that the plea of payment is not sufficiently explicit as to dates and the manner of payment.
It is further ordered that no execution shall be issued on this judgment, except for the sum of five thousand six- hundred and fifty-nine dollars nineteen cents and interest at the rate of $57 per annum from January 10, 1853, which is due, independently of the unascertained credits, until a final decision shall be rendered, ascertaining and establishing the amount, if any, actually due after allowing such additional payments as may be proved. The costs of this appeal to he paid by appellees.
Rehearing refused.