
    Eckenroth v. Vought.
    Appeal from a judgment of a District Court of the city of Eew York, rendered in favor of plaintiff.
    
      Jolm J. McKekey, for defendant (appellant).
    
      Robert O’Byrne, for plaintiff (respondent).
   Bookstaver, P. J.

On the trial it was stipulated that the plaintiffs sold and delivered to the defendant the merchandise specified in plaintiff’s bill of particulars, and the defendant agreed to pay the reasonable value thereof, and that the reasonable value of the merchandise sold on September 3, 1890, was specified in the bill of particulars, and that defendant had paid on account $388.23, which he claimed to be the reasonable value; but plaintiff claimed $101.27 in addition to the $388.23, out of which he admits there should be an allowance of $19.27. It was further admitted that of the fifty-four turned posts mentioned in the bill of particulars, thirteen were locust, and reasonably worth eight dollars and seventy-five cents each, and the remaining posts, forty-one in number, were yellow pine, the reasonable value of which is the item in dispute in this action. It was further conceded by defendant’s attorney, that if plaintiffs succeeded on the trial, they could recover eighty-two^ dollars. The matter at issue is thus narrowed down io what was the reasonable value of the forty-nine pine posts furnished to defendant by plaintiffs. The original contract under which the fifty-four posts were to be made and delivered, called for locust posts, but it was modified after the delivery of thirteen locust posts, so that the forty-one remaining were to be of pine. Upon this question both parties offered considerable evidence, some of it being by parties interested, and other by expert witnesses. A careful review of the evidence does not convince us that there was such a preponderance in favor of the defendant that the judgment should have been in his favor.

There is quite sufficient evidence on behalf of the plaintiff to warrant the finding of the court below, and the judgment should, therefore, be affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed.  