
    Braun, Ray Brothers & Finley Company, appellant, v. A. F. Roberts Construction Company et al., appellees.
    Filed December 31, 1931.
    No. 27898.
    
      J. E. Ray and Denney & Denney, for appellant.
    
      John C. Hartigan and M., A. Bender, contra.
    
    Heard before Rose, Good, Day and Paine, JJ., and Nisley, District Judge.
   Nisley, District Judge.

This is an action to recover $846.54, the agreed price of three carloads of lumber sold and delivered by plaintiff to defendant and accepted and used.

In a cross-petition defendant pleaded that he purchased from plaintiff 15 cars of lumber consigned to different places; that the lumber first shipped was not of the grade purchased, part of it being unfit for use, and plaintiff being so notified; that the parties afterward agreed defendant should accept and use the 15 cars, cull what lumber was unfit for use, purchase and substitute other lumber for the culls, and cut defective parts from usable pieces and utilize the latter; that plaintiff agreed to pay for the substituted lumber and for the extra work incidental to the use of defective materials in the original shipments; that defendant paid all lumber bills presented by plaintiff except a balance of about $800. Under the agreement pleaded in the cross-petition defendant’s claim for substituted lumber and extra expenses on account of defects was $2,184.81.

The facts on which the cross-petition of defendant was based were put in issue by an answer of plaintiff. Upon a trial of .the issues the jury rendered a verdict against plaintiff on its petition and in favor of defendant for $1,000 on the cross-petition. From a judgment against plaintiff for that sum it appealed.

An assignment of error challenges the verdict in favor of defendant as excessive. The cross-petition and the undisputed evidence show conclusively that defendant incurred liability for the purchase price of the three carloads of lumber for which plaintiff in his petition demanded judgment for $846.54. There was therefore no legal justification for a verdict against plaintiff on his petition. The limit of defendant’s legal recovery against plaintiff on the cross-petition was $1,000 and the trial court so instructed the jury in specific terms. There is sufficient competent evidence to support the verdict in favor of defendant for that sum. The record clearly shows, therefore, that the verdict and judgment are excessive to the extent of $846.54. To correct the error defendant will be permitted to file with the clerk of this court within 20 days a remittitur for $846.54 as of the date of the judgment of the district court. Upon the filing thereof, the judment will stand affirmed to the extent of $153.46. Otherwise, it will stand reversed and the cause remanded for a new trial. Other assignments of error seem to be without merit.

Affirmed on condition.  