Brumwell v. Ede

155 N.W. 1103, 36 S.D. 529, 1915 S.D. LEXIS 190

Opinion

MeCOY, P. J.

This action was brought by -plaintiff against defendant to recover an alleged balance claimed- to be due on a bill of lumber furnished by plaintiff to defendant in the construction of a house. Defendant denied plaintiff’s claim to such balance. Defendant admitted that he. entered into a contract with plaintiff to furnish specified lumber - at a fixed price, and alleged that he had -fully paid such amount. As a counterclaim- defendant alleged that by the terms of the contract of sale of such lumber plaintiff agreed to furnish and deliver the same at certain specified times, and -that by reason of the failure of plaintiff to deliver portions of such- lumber at the times specified- defendant was -delayed in the construction of said house to his damage in the sum of $100. Plaintiff replied, alleging that whatever delays, if -any, occurred in the delivery of said lumber, were due to the -change in specifications made by defendant, and that defendant bad by his conduct waived -his- right -to- damages- on account of such delays by having accepted and .paid for such delayed portions of said lumber. There was a verdict and judgment in favor of defendant, and plaintiff appeals. The sufficiency of the evidence to- justify the verdict is not presented by the appeal record. The only errors attempted to be raised are-in connection with the reception or rejection of evidence and instruction of the court. W-e -have carefully gone over each of the assignments of error, and are of the opinion that no reversible error is- shown to exist by the appeal record. It will serve no useful purpose to further refer thereto. The judgment and -order appealed from are affirmed.

S-MITH, J.; absent, not sitting.