The motion for a nonsuit was properly denied, bio grounds for the motion were stated, and enough appeared to require that the cause be submitted to the jury. The fact that after the plaintiff’s cause of action had accrued he transferred an interest in the logs on hand to his brother did not give to the latter any interest in the cause of action. The defendant’s contract for a breach of which the action was brought, was made with the plaintiff, and no part of the plaintiff’s claim for damages for such breach appears to have been assigned. Besides, the objection is not set up in the answer, and nowhere appears in the pleadings. (Code, §§ 144, 147, 148.)
*97[Monroe General Term, September 7, 1863.The plaintiff testified that at the expiration of the two months mentioned in the agreement indorsed on the lease, he had two basins filled with logs amounting to 225,000 feet. These, I infer from the plaintiff’s evidence, were purchased the winter before and paid for by the plaintiff. "They were therefore on hand at the expiration of the two months and when the plaintiff gave up possession of the mill on the defendant’s demand. By demanding the possession, the defendant determined his election under the agreement, to pay for removing the logs and getting them sawed at another mill.
On this state of facts I think the plaintiff would be liable to pay what the expense would be of removing and sawing the 225,000 feet of logs, deducting the 60,000 sawed within the two months which were purchased after the notice. And the plaintiff would not be bound to wait until such expense should be actually incurred by him. I think the charge of the judge was in all respects correct.
We cannot, on a bill of exceptions, review the evidence at the general term, to see whether the damages are excessive. And if it were competent for us to do so, we could not, for the reason that the case does not profess to contain the evidence on the question of damages. A new trial should therefore be denied, and judgment for the plaintiff on the verdict should be entered.
Ordered accordingly.
Johnson, J. C. Smith and Welles, Justices.]