delivered the opinion of the court.

This was an action of assumpsit, brought by Justice against Leflore, to recover for erecting the machinery and press of a cotton gin. After one mis-trial, a verdict was rendered in favor of the plaintiff, for $120, part of the price having been paid. The defendant moved for a new trial, which was refused. The whole evidence was then embodied in a bill of exceptions, and the case brought by writ of error to this court.

There was no instruction asked of the court, and the sole error assigned, is the refusal to grant the new trial.

It is the peculiar province of the jury, to determine upon the evidence; and it must be a very clear case, in which this court will set aside their finding. Yet, if from a view of the whole testimony in reference to the law which must govern the case, the court is satisfied that justice has not been done, it is our duty to grant a new trial.

Every workman who contracts to do a piece of work, it would seem, engages to bring sufficient skill and dexterity to its performance, to complete it in a just and workmanlike manner.. The law implies a warranty on his part, to this extent. Chitty Con. 356. Jones v. Bright, 5 Bing. 533. But, in addition to this implied warranty, the evidence in this case is, that the plaintiff “ agreed, that, for the sum of $250, he would build as good running gear and screw for the gin as any other mechanic could, and that it should be put up in a workmanlike manner.’* *384Here, then, is an express warranty for the performance of the work in a particular way. With a proper understanding on the part of the jury, of the effect in law, of this warranty, we think they would have arrived at a different conclusion.

It may be necessary for us to examine the evidence somewhat in detail. The plaintiff first proved that he was considered a good workman, by those who had employed him. He next proved that he was taken sick during the progress of the work, and that the overseer of the defendant pressed him to proceed and finish it—that he was able to lay it off and give directions, and that two young men who worked with him, went on with the work and finished it. They complained that the timber was not sufficiently seasoned, but the overseer told them to do the work on his responsibility, and that if they did not do it, he would have to employ another mechanic.

One of these young men, who was examined as a witness, stated that he was not a regular workman or gin-wright, but that he had worked with his father, who was. This was the testimony on the part of the plaintiff. The defendant then proved that the plaintiff had represented himself to be a good workman, and able to make good machinery and screw; and that the contract was entered into, as above stated. He also proved that he furnished the plaintiff with a hand to attend to the kiln in drying the timber for use, and that the plaintiff afterwards dismissed him, saying it was sufficiently dried. He also proved, that after the work was completed he attempted to put the gin in operation, and that the machinery commenced tumbling to pieces in five minutes—-that the cog-wheel did not go round the first time before the hand-wheel braces began to fall, and the machinery required constant repairing. He also proved, that Justice acknowledged the imperfect execution of the work and promised to repair it, but after repeated applications, failed to do it. He then proved by Gatewood, a gin-wright, that he had been employed to repair the machinery, and found it necessary to take out the drum-wheel, trundle-head and shaft, and build them entirely anew. This witness pointed out other defects, and stated that they proceeded not from the want of seasoning of *385the timber, but from defects in the workmanship—that he had repaired the press, and the following season had pulled it down and built an entirely new one—that good running gear of a gin and a press would last from four to seven years.

Here, then, was direct, positive and úncontradicted evidence, that the work was performed in an imperfect manner—that there was a breach of the contract and of the warranty by the plaintiff, and a failure to come up to the representations which he had made of his own qualifications.

It is the usual and more correct practice, for one or both of the parties to ask such instructions of the court below, to the jury, as are deemed necessary to guide them in their deliberations. But if no charge is asked or given, and the case comes up as this has done upon a bill of exceptions embracing the whole evidence, this court must consider whether the law which controls the cause has been properly understood and applied to the facts by the jury. This task is a delicate and difficult one, but it must be performed. The inclination of the court will be to sustain the verdict, if it can be done on correct legal principles ; but if it cannot, we must give the parties another trial.

In this case, we have come to the conclusion that there is error in the finding; we therefore reverse the judgment, and award a new trial.