Westcott v. Wade

(after stating the facts). 1. Was the suit prematurely brought ?

*341Defendant contends that under the verbal contract testified to by plaintiff he had no right to pay until the lumber was inspected, and this suit was brought before that inspection. We answer this contention by saying that the testimony of plaintiff is certainly open to the construction that the contract obligated defendant to pay $3 per thousand as fast as the lumber was sawed. Plaintiff testified that defendant said, “ as fast as you cut the lumber you will be paid the money.” It cannot, therefore, be said, as a matter of law, that plaintiff was obliged to wait for his money until the lumber was inspected. We therefore overrule defendant’s contention that this suit was prematurely brought.

2. Was the judgment excessive ?

Defendant contends that it was, to the amount of $10.51. We content ourselves with saying that there was evidence from which the jury might find that the amount of the damages was $81.50. Perhaps they should have found a verdict for a smaller amount. If so, that question should have been raised by a motion for a new trial. It was not so raised and we cannot consider it.

Judgment affirmed.