77 Ind. App. 427 | Ind. Ct. App. | 1921
Complaint by appellant to foreclose a mechanic’s lien, alleging that he furnished lumber to appellee for the erection of a barn at an agreed price of $931. Appellee contended that she purchased the lumber from appellant at $40 per thousand feet and before suit tendered appellant $425, which was later paid into court.
The court found that there was due and owing appellant $420.72, that being the value of the lumber at $40 per thousand. On February 26, 1919, appellant filed his motion for a new trial. This motion was overruled May' 8, 1919, and exception reserved. On May 14, judgment was rendered, appeal prayed, granted, and thirty days given in which to file bond and bill of exceptions. The bill of exceptions was filed May 29, which was during the term at which the motion for new trial was overruled. The only error assigned • relates to the action of the court in overruling the motion for a new trial.
The court clearly erred in admitting the testimony of the above witnesses.
Appellee contends that there was such a variance between the allegations of the complaint as to prevent a recovery. This question may not arise upon a second trial and need not be considered by us at this time.
Judgment reversed with directions to sustain appel