Mahoney v. Chandler

7 Ala. 732

Opinion

G-OLDTHWAITE, J.

— We should be inclined to think that mo action could accrue to Mahoney on the contract offered in evidence against the Chandlers, because they do not contract with him, but with Nisbet. It is the case of two sets of workmen, contracting with their employer, and providing for payment for their services out of the thing to be made. It is true, that Mahony was to be paid in a particular manner, out of •the profits of the mills, but this does not, as it seems to us, make the Chandlers responsible to him for not building the dam; for the contract to build that was made with Nisbet, who is not a party to this action. However, this may be, the plaintiff cannot now review the error, as he consented to be nonsuited. [Cain v. Byrd, 1 Stew. 189.] To enable him to review a judgment upon the exclusion of evidence, the plaintiff must risk the chance of a verdict. This case does not resemble that of Leavitt v. Friou, for there the party refused to proceed further, and the Court disposed of the case, upon that refusal, and not with his assent as the entry shows was done here.

Judgment affirmed.