The plaintiff claims against the defendant $775 11, with interest, at eight per cent., from the 5th November, 1860, for work and labor performed, and materials furnished, in paving street opposite the property of said Beard, as per bill annexed to and made a part of the petition. He prays accordingly, and for a special lien and privilege on the property.
The defendant answered by a general denial; but admitting, at the same time, that the paving had been done in front of the property described; denying, also, that it amounted to the sum sued for. He further pleaded in compensation the sum of $755 against plaintiff’s demand.
The account sued upon and annexed to the petition was offered in evidence.
Plaintiff also offered in evidence the contract under which the paving was done.
It was admitted that the work was done in accordance with the contract, and the production of said contract was waived and dispensed with.
The district judge, after hearing the testimony, gave judgment for the plaintiff, as prayed for, and against the defendant, rejecting also defendant’s plea in compensation.
The defendant appealed from this judgment.
The defendant has made no appearance in this court. The plaintiff and appellee had the case fixed for argument, and submitted it with a prayer for damages for a frivolous appeal.
We have carefully examined the record, as the law requires of us. C. P. Art. 892. We are satisfied that plaintiff clearly made out his case by proofs, admissions and pleadings of the defendant, except that we have seen nothing to support the allowance of conventional interest at eight per cent, per annum; we do not feel authorized to affirm that part of the judgment appealed from.
It is therefore adjudged and decreed, that the judgment of the District court be so amended as to allow five instead of eight per cent, per annum, from the 5th November, 1860, till paid, and that, as amended, it be affirmed; the appellee to pay the costs of appeal.