
    BRUMWELL, Appellant, v. EDE, Respondent.
    (155 N. W. 1103.)
    (File No. 3663.
    Opinion filed December 31, 1915.)
    Appeals — Renew—No Error Under Assignments — Affirmance.
    No question Raving been raised by appellant as to sufficiency of evidence to support the verdict against him, and there appearing no reversible errors among those assigned on appeal, judgment and order appealed from are affirmed.
    
      Appeal from Circuit Court, Beadle County. Hon. Alva E. Taylor, Judge.
    Action by F. R. Brumwell, against Ernest D; Ede, to recover for merchandise sold. From a judgment for defendant, and. from an order denying a new trial, plaintiff appeals.
    Affirmed.
    See, also, 35 S. D. 293, 152 N. W. 108.
    
      A. W. W'ilman'th, for Appellant.
    
      Null & Royhl, and Ernest D. Bde, for Respondent.
   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.  