
    Woods-Hoskins-Young Company, a Corporation, Plaintiff in Error, v. Stone & Baker Construction Company, Defendant in Error.
    
    En Banc.
    Opinion Filed August 1, 1927.
    Petition for Rehearing Denied October 13, 1927.
    
      
      McCune, Casey, Hiaasen & Fleming, Attorneys for Plaintiff in Error;
    
      George W. Tedder, Attorney for Defendant in Error.
   Per Curiam.

In this case declaration was filed in three counts. The first count was on contract. The second count was a common count for work done and materials furnished, and the third was a common count for money found to be due on account stated. The sufficiency of the declaration was not challenged by demurrer or otherwise.

There were five pleas to the declaration. There was issue joined on the first plea and replication filed to the remaining four pleas. Trial was had, resulting in a verdict in favor of the plaintiff in the sum of $7,265.29 on which judgment was entered, to which judgment writ of error was taken. The record discloses no material errors of law.

There were conflicts in the testimony which were settled by the verdict of the jury which verdict has sufficient supporting evidence.

The amount of recovery was limited by the ad damnum clause in the declaration. In each count of the declaration the ad damnum clause fixed the amount claimed at $6,854.05. The verdict was excessive in that it found for the plaintiff in the sum claimed together with interest in the further sum of $411.24. The order of the. Court is that the judgment of the Circuit Court be reversed and a new trial granted, unless the appellee, or his attorney, within 30 days after filing of the mandate of this Court in the office of the Clerk of the Circuit Court shall file with the clerk of said court a remittitur as included in the verdict and upon the filing of said remittitur the judgment shall stand for the balance of said recovery as. the judgment of the Circuit Court to be enforced according to law. If said remittitur shall not be entered as aforesaid the judgment will upon the expiration of said 30 days be held to be vacated and a new trial awarded. The costs of this appeal, will be taxed against the appellee.

Ellis, C. J., and Whitfield, Strum, Brown and Buford, J. J., concur.

Terrell, J., not participating.  