
    Angelo Bottalico v. Aldo Pellini.
    November Term, 1920.
    Present: Watson, C. J., Powers, Taylor, Miles, and Slack, JJ.
    ' Opinion filed January 8, 1921.
    
      Other Grotmds of Action not Waived by Plaintiff’s Testimony in Cross-examination.
    
    In an action to recover tbe price' paid for a suit of clothes, because not according to contract, plaintiff’s testimony in cross-examination that his only claim was that there were two colors in the suit did not in itself constitute a waiver of other alleged grounds of action, as that the cloth was cut different ways of the nap, making the süit look as if it were made of two pieces of cloth, unlike in color.
    Action op Contract. Trial by the Montpelier City Court, Washington County, Erwin M. Harvey, City. Judge. Judgment for the plaintiff. The defendant excepted.
    The plaintiff sought to recover of the defendant the amount paid him for making the plaintiff a suit of wedding clothes. The plaintiff alleged in his declaration that the defendant promised ‘ ‘ that he would make for him a suit of clothes which were to be properly tailored and of 'good material, properly cut and made, suitable and proper for wearing apparel, for a best suit.” The plaintiff wore the suit at the wedding ceremony and at the dinner which followed, and then took it off and never wore it again, but later returned it to- the defendant and demanded the return of his money, which was refused. The plaintiff claimed that the trouble with the‘suit was that it was made of cloth' of “two different kinds of colors. ’ ’ The trouble with the suit was that, in cutting the cloth of which it was made, the cloth was cut the wrong way of the nap, and it looked as though it was of two different pieces of cloth, unlike in color.
    
      Joseph G. Erattini for the defendant.
    
      J. Ward Carver for the plaintiff.
   Watson, C. J.

In cross-examination plaintiff was asked and testified as follows: “Q. Tour only claim is now that there is two colors in that suit? A. Yes. Q. That is'yoiir wholé claim? A. Yes. I claim .that there is two colors in that suit. Q. And you do not claim anything else? A. No.” Urging that this was a waiver by plaintiff of all other alleged ground's of complaint within the scope of the declaration, the defendant objected to evidence showing that he made a mistake in cutting the cloth of which the suit was made, different ways of the nap, thereby making the suit look as if it were made of two pieces of cloth, unlike in color. There was no error in receiving the evidence. The mere fact that plaintiff stated in cross-examination as set forth above, did not in itself constitute a waiver of other alleged grounds of action, shown by proper evidence.

Defendant excepted to the judgment, but assigned no grounds. The only ground argued is that of waiver, determined in the preceding paragraph.

Judgment affirmed.  