Note 24 — HOGARTH.

In co'i Banco.

William Hogarth, Plaintiff. Joshua Morris, Defendant.

Middlesex.

The Plaintiff declares, that on the 20th of December, 1727, at Westminster aforesaid, Defendant was indebted to him 30 l. for painter's work, and for divers materials laid out for the said work; which Defendant faithfully promised to pay when demanded.

Plaintiff also declares, that Defendant promised to pay for the said work and other materials, as much as the same was worth; and Plaintiff in fact says the same was worth other 30 l.

Plaintiff also declares for another sum of 30 l for money laid out and expended for Defendant's use, which he promised to pay.

The said Defendant not performing his several promises, the Plaintiff hath brought this action to his damage 30 l. for which this action is brought.

To which the Defendant hath pleaded non assumpsit and thereupon issue is joined.

CASE.

The Defendant is an upholsterer and tapestry-worker, and was recommended to Plaintiff as a person skilful in painting patterns for that purpose; the Plaintiff accordingly came to Defendant, who informing him that he had occasion for a tapestry design of the Element of Earth, to be painted on canvas, Plaintiff told Defendant he was well skilled in painting that way, and promised to perform it in a workmanlike manner; which if he did, Defendant undertook to pay him for it twenty guineas.

Defendant, soon after, hearing that Plaintiff was an engraver, and no painter, was very uneasy about the work, and ordered his servant to go and acquaint Plaintiff what he had heard; and Plaintiff then told the said servant, 'that it was a bold undertaking, for that he never did any thing of that kind before; and that, if his master did not like it, he should not pay for it.'

That several times sending after Plaintiff to bring the same to Defendant's house, he did not think fit so to do; but carried the same to a private place where Defendant keeps some people at work, and there left it. As soon as Defendant was informed of it, he sent for it home, and consulted with his workmen whether the design was so painted as they could work tapestry by it, and they were all unanimous that it was not finished in a workmanlike manner, and that it was impossible for them to work tapestry by it.

Upon this, Defendant sent the painting back to Plaintiff by his servant, who acquainted him, 'that the same did not answer the Defendant's purpose, and that it was of no use to him; but if he would finish it in a proper manner, Defendant would take it, and pay for it.'

Defendant employs some of the finest hands in Europe in working tapestry, who are most of them foreigners, and have worked abroad as well as here, and are perfect judges of performances of this kind.

The Plaintiff undertook to finish said piece in a month, but it was near three months before he sent to the Defendant to view it; who, when he saw it, told him that he could not make any use of it, and was so disappointed for want of it, that he was forced to put his workmen upon working other tapestry that was not bespoke, to the value of 200 l. which now lies by him, and another painter is now painting another proper pattern for the said piece of tapestry.

To prove the case as above set forth, call Mr. William Bradshaw.

To prove the painting not to be performed in a workmanlike manner, and that it was impossible to make tapestry by it, and that it was of no use to Plaintiff, call Mr. Bernard Dorrider, Mr. Phillips, Mr. De Friend, Mr. Danten, and Mr. Pajon.

By the counsel's memoranda on this brief it appears, that the witnesses examined for the Plaintiff were Thomas King, Vanderbank, Le Gard, Thornhill, and Cullumpton.