1. The plaintiff made a verbal contract with> the defendant railway company to furnish it a specified number of cypress poles. It was admitted that the number of poles were furnished, but some were rejected, and payment for them was refused, because, as contended by the company, they did not come up to the specification of the contract as to size; the company contending that the contract specified that the poles were to be “10 inches in diameter at the small end.” The plaintiff contended that the contract specified that they were to be “8 inches in diameter at the small end.” The general manager of the defendant company, after inspecting the poles, wrote to the roadmaster, who was the agent representing the railway company in making the contract, to the effect that a majority of the poles exceeded 8 inches in diameter at the small end, and, if the specification of the contract was as claimed by the plaintiff, the company owed the account sued on. Held: The letter was not a confidential communication, and was competent evidence in behalf of the plaintiff. But, even if incompetent, its admission was harmless, there being no dispute that the poles were not less than 8 inches in diameter at the small end; and the letter contained no statement as to what in fact was the specification of the contract on the sole question in issue.
2. There was no error for any reason in the following instruction to the jury: “If you should find that the plaintiff has not carried the burden to your satisfaction, or that the defendant, by the preponderance of testimony, or by sufficient proof to satisfy your mind, has proven to you that they are not liable for any amount, your verdict will be: ‘ We, the jury, find for the defendant.”’
3. The exceptions as to alleged errors of law are manifestly without merit; the controlling question depended upon an issue of fact, on which there was conflict in evidence, and this conflict was settled by the verdict in favor of the plaintiff. Judgment affirmed.
William 11. Barrett, J. P. Knight, Quincey & McDonald, f<rr plaintiff in error. Rogers & Heath, contra.