There having been no motion for a new trial, the only available assignment of error in this case is that the court erred in denying defendant’s motion to dismiss the action when the evidence was closed. While it seems to us that the decided preponderance of evidence was on the side of defendant, yet we do not think there was such a lack of proof on part of plaintiff as would have justified the court in taking the case from the jury. There was no doubt but that defendant directed this earth to be removed, and was to pay for it. The question was whether -this contract was made with Woods & Lovejoy or with plaintiff. If the jury believed the testimony of plaintiff, it would have justified them in finding that the contract- was with him. Again, while there was no doubt that plaintiff drew from Woods & Lovejoy the money to pay the teams and men-that removed this earth, yet there is some conflict in the evidence as to whether this work was included in the estimates of work done by the subcontractor, plaintiff’s son. If it was not, then all the money drawn from Woods & Lovejoy would be presumably charged to him on his original contract, and thus leave this work unpaid for.

Judgment affirmed.