Epitomized Opinion

Johnson agreed. in writing to sell, and Hubbard agreed to buy 100,000 feet of lumber, the ship-*315nent being guaranteed by Johnson to contain a eer-ain per cent of a grade of lumber designated as i1. A. S. Shipment was begun, but Hubbard com-dained that the shipment was not according to the written guarantee and rejected it. The diffeerence vas adjusted later, it being agreed that Johnson hould ship enough F. A. S. grade to make the otal shipment average as guaranteed. Hubbard laims that this agreement only contemplated ship-nent of enough F. A. S. grade to make up the hortage in the first shipment, while Johnson claims hat, by the new agreement, the amount was not imited to the 100,000 feet originally bargained for. Tohnson brought action to recover the purchase >rice of the amount over 100,000 feet which Hub->ard refused to accept. Hubbard in a cross-actcion seeks damages for alleged breach of warranty. Held by Court of Appeals in reversing judgment lor Johnson:

1. The lower court’s instruction to the jury that ;hey should determine whether or not there was a varranty was erroneous. The contract, including ;he warranty, was in writing, and the duty devolved rpon the trial court to construe the contract.

2. Certain instructions to the jury requested by iohnson were based upon a misconstruction' of the lontraet, and were properly refused.

3. The verdict allowed by the jury is clearly excessive and manifestly against the weight of the evidence.