The opinion of the Court was delivered by

Agreeably to the admeasurement and usual prices of work, it will not be denied that the defendant incurred a debt to the whole amount of the plaintiff’s bill; and he now attempts to reduce that amount, by setting up an agreement between them, that a certain per centage was to be deducted from the amount of the bill. There is no question that the plaintiff was competent to enter into such a contract, and if it had formed a part of the original agreement he would have been bound by it. The acquiescence of one party to a statement by the other, and under some circumstances his silence might be construed into an acknowledgment* of the truth of the statement; but in this case, so far from acquiescing or assenting to the statement made by the defendant, the plaintiff expressly denies his recollection of the existence of any such agreement. And his assenting to make a calculation, at a deduction, first at fifteen per cent, and then at twenty, at the request •of the defendant, evidently appears to have been a mere project to see what the result would be; and his immediate refusal to accept the balance found to be due on this calculation, furnishes the strongest ground to believe, that in assenting to its being made, he did not intend to consider himself bound by it. Independent of this conclusion resulting from the facts, I am inclined to think there is a legal objection to the defendant’s availing himself of this ground of defence. There is no evidence, as I before remarked, that a deduction from the usual prices formed any part of the original agreement, except the mere assertion of the defendant himself, which is certainly no proof; and if after the debt was incurred, the plaintiff had consented to make a deduction, he would not be bound by it, unless there had been some consideration moving to it, and none has been pretended to exist in this case.

Let the motion for a new trial be dismissed.

dissented, as follows:

From the evidence, as reported in this case, I am induced to think that the jury were not authorized to find a verdict to the extent which they have done. The defendant had settled with the plaintiff for the greater part of the work which had been done. An admeasurement became *69necessary. When completed, a balance of $301 75 appeared to be yet due. The defendant stated to the plaintiff, that he had agreed to deduct twenty-five per cent, from the admeasurement bill, which the plaintiff did not deny, but observed that he did not recollect it. Upon being asked what he would deduct, he said fifteen per *cent. The defendant proposed splitting the difference ; the plaintiff replied, “try that” Here the transaction closed for that time; afterwards, when the account was made out, with a deduction at the rate of twenty per cent., the plaintiff was unwilling to receive the small balance which appeared due. The defendant objecting to a different adjustment, the plaintiff commenced his action. It is to my miud very evident, that there was such an agreement on the part of the plaintiff to deduct fifteen per cent., as could not be receded from; and the conclusion is very strong, that he had assented to a deduction of twenty per cent. The evidence in respect to the latter sum, is however equivocal. I lay great stress upon the observation of the defendant to the plaintiff, that he had agreed to deduct twenty-five per cent., and not denied by him. He only did not recollect it; but his prompt acquiescence to deduct fifteen per cent., strengthens the presumption of an understanding between the parties, that a deduction was to be made on the admeasurement taking place. The charge of the Judge who stated, that the plaintiff was entitled to the balance of the account, agreeably to the admeasurement bill, may have operated, and no doubt did, upon the minds of the jury, so far as to occasion them to disregard the evidence, proving the plaintiff’s agreement to deduct fifteen per cent. Admeasurement bills are generally swollen to an amount that will admit of some deduction; and as the plaintiff did not deny an agreement to make a deduction in the ease, and moreover, did expressly agree to a deduction of fifteen per cent., I think no greater allowance was admissible, than the balance with that ratio of deduction.

I am, therefore, for these reasons, of opinion, that a new trial ought to be allowed.

See 1 MeC. 514, 489; 1 Sp. 375.