Rout v. Menifee

Worden, J. — Action by the appellees, against the appellant, for three thousand feet of lumber sold and delivered by the plaintiffs to the defendant, at twelve dollars per thousand. The action was brought before a justice of the peace, and appealed to the circuit court, where it was tried by a jury, resulting in a verdict and judgment for the plaintiffs for thirty-three dollars and sixty-three cents. The case is before us on the evidence, and the only question made is, whether the evidence sustains the verdict. It is claimed that the evidence does not show the quantity of the lumber furnished. The complaint mentioned the amount of lumber, and there was a bill of the particulars thereof accompanying the complaint. One of the plaintiffs testified as follows: “I am one of the plaintiffs in this cause, and Jacob Cossairt is the other plaintiff; we sawed for the defendant the bill of lumber mentioned in our complaint, to the amount of-feet; it was worth twelve dollars per thousand to saw and deliver the said lumber.” There was no evidence showing the exact amount of the lumber furnished, unless the complaint be looked to, to which the witness referred for that purpose. The appellant claims that the complaint, as it was not [526] given in evidence, could not have been looked to by the jury to ascertain the quantity. Without determining this question, we think the judgment must be affirmed on 'Other grounds. There was abundant evidence from which it might have been found that some lumber was furnished, and this would have entitled the plaintiffs to at least a nominal amount. The motion for a new trial did not embrace either •of the causes : that the damages assessed were excessive, or that the jury had erred in assessing the amount of the recovery. The judgment below is affirmed, with costs.