
    Lea v. Harris.
    A suit in a justice’s court upon an account for “damage in timber, was not sustained by evidence showing that plaintiff and defendant contracted that plaintiff should have all the timber suitable for making cross-ties on certain land, at a specified sum which he paid to defendant; that afterwards plaintiff got from the land about 250 cross-ties, and then defendant refused to allow him to get more ; and that there were at least 200 more he could have got had he not been so prevented. This evidence made a case for recovery, but not upon the account sued on, there being no damage to timber.
    Simmons, J., not presiding, because of sickness.
    December 13, 1889.
    
      Certiorari. Actions. Damages. Evidence. Defore Judge Milner. Gordon superior court. February term, 1889.
    Deported in the decision.
    D. J. McCamy and W. J. Cantrell & Son, for plaintiff in error.
    O. N. Starr, contra.
    
   Blandford, Justice.

Harris sued Lea in a justice’s court upon the following account: “John Lea, dr. to T. II. Harris sixty dollars, damage in timber.” He obtained a judgment for twenty dollars. Lea filed a petition for writ of certiorari, to the superior court. The court dismissed the certiorari, and Lea excepted, and said the court erred in dismissing the certiorari.

The evidence in the case showed that Harris entered into a contract with Lea, in which it was agreed between them that Harris should have all the timber suitable for making cross-ties on a certain tract of land, at a certain specified sum of money, which he paid to Lea, and that afterwards he got from the land a large number, of cross-ties (some 250); that Lea then refused to allow him to go upon the land and get more, and that there were at least 200 more he could have got if he had not been prevented by Lea from getting the same, which were of the value of twenty dollars.

The defendant in error had a good cause for recovery upon the proof submitted by him, but the proofs did not sustain the account sued upon. There was no damage to timber. His proof showed no damage to timber whatever, and the judgment was without eviidence to support it in the justice’s court; and we are of the opinion, therefore, that the court below erred in dismissing the writ of certiorari. "We think he should have sustained the same, and have directed the justice to have dismissed the case in the justice’s court, and it is so ordered. Judgment reversed.  