Moorer v. Leland Lumber Co. ( 1909 )

Whitfield, O. J.,

delivered the opinion of the court.

The original estimate in this case, which is attached to the declaration as Exhibit E thereto, shows the amount, in value, of the lumber deemed necessary for the building to be $1,400. It is plainly shown that $900 in cash were paid the appellee, and that $226.90 worth of lumber was credited back by way of deficiencies; that is to say, that much lumber under the original estimate was never furnished and never was in the building. If these two sums be added together and subtracted from the amount of the original estimate, it shows, beyond controversy, that only $2Y3.10 could have been recovered in this suit on the evidence in this record, if extras furnished are not embraced under the terms of the agreement of counsel set out in the record.

That agreement is in the following words: “It is agreed between counsel that the full amount furnished under the estimate, as shown by the slips or dray tickets, is $1,390.06, of which the dray tickets contain the statement: Sold to Ellis, $834.04; sold to Moorer, $556.02'.” We do not think there can be any reasonable controversy as to the meaning of the word “estimate” in this agreement. We think it is clear that this agreement refers alone to the amount otf the Original estimate, and not at all to the amount of any extras that may have been furnished. ' This being so, it is plain that the verdict of the jury was for too much.

There is also a motion in this case to purge from the record certain documents. It is entirely unnecessary to a decision in the case to deal with this motion at all.

The judgment is reversed, and the cause remanded.