Hack v. Shovlin

The learned trial judge instructed the jury to find as a fact whether, the written notice of the appellee to the appellant of January 5, 1914, was an absolute abandonment of the contract by the former, or merely that he would not prosecute the work until, upon a re-estimate for December, he was paid what was due Mm. The finding of the jury was that he had not absolutely abandoned the contract, and, as the appellee did not tender payment to him of the amount due on the re-estimate of January 7th, he was entitled to recover. This was the correct view of the court below in discharging the rule for a new trial, and the judgment is affirmed.