
    Garver v. Daubenspeck.
    Contracts.—The price for work done in part under special contract, and in part under parol modification of such contract, should be controlled by the special contract so far as it is done in pursuance of it.
    Practice—Waiver.—Error in the progress of a trial, which is not made the basis of a motion for a new trial, is waived, and section 347 of the code, 2 G. & H. p. 210, does not dispense with the necessity for the motion for a new trial on the ground of the supposed error.
    APPEAL from the Hamilton Common Pleas.
   Worden, J.

This was an action by Daubenspeek against Garver, to recover for the building of a house by the plaintiff for the defendant. Verdict and judgment for the plaintiff'.

The house, it appears, was built under-a special contract, with perhaps some alterations made by the consent of the parties; and on the trial the Court permitted evidence to be given by the plaintiff of the reasonable value of the entire work and materials. Exception was taken to the ruling. It would seem that the contract price should have governed, so far as the work was done under the special contract. Walcott v. Yeager, 11 Ind. 84.

Put the error, if error was committed, is not before us in such a manner as to be available for a reversal of the judgment. The record informs us that the defendant moved for a new- trial, and filed written reasons therefor, but those reasons are not contained in the record; hence, we are not advised that the defendant moved for a new trial on the ground of the admission of the objectionable testimony. The case comes up under the 347th section of the code, but that section does not dispense with the necessity that existed of moving for a new trial on the ground of the supposed error, and the record ought to show that such motion was made. If such motion was not made, the error was waived. Kent v. Lawson, 12 Ind. 675.

B. K. Klliott, K. S. Stone and James O’Brien, for the appellant.

Or. H. Voss, for the appellee.

Per Curiam.

The judgment is affirmed, with costs.  