Rightmire v. Hunteman

Irvine, C. The defendants in error sued the plaintiff in error for building materials sold and delivered. The plaintiff in error interposed a counter-claim for damages caused by defective material and delay in delivering the same. There was a verdict and judgment for the defendants in error for 1980.47. Error is assigned on the admission in evidence of two papers, designated Exhibits “A” and “B.” Exhibit A is not made a part of the bill of exceptions and for that reason the assignment of error in relation thereto would have to be disregarded. Exhibit B is simply a list of the material sued for in the second count of the petition. The answer expressly admits the contract for this particular material, the only issue raised being as to the fact- of its delivery and as to its character. This list could have no influence on the determination of this issue; and whether or [120] not it was competent, its admission could not have been prejudicial. It would seem from the general testimony that Exhibit A was a similar list of other material, and the same remarks would be applicable to it. The principal assignment of error is that the verdict is not sustained by the evidence and that it is excessive. It is admitted that the defendants in error were entitled to-some judgment against the plaintiff in error, but it is urged that the judgment rendered was too large. No question of law is involved in this assignment, and it would be useless to state the evidence in the opinion. It has been examined and found to be conflicting, with sufficient evidence on behalf of the defendants in error to forbid our disturbing the verdict. Judgment affirmed. Post, J., not sitting.