1. J. B. Adams brought suit against the Doerun Ice & Coal Storage Company to foreclose a lien upon real estate. The jury rendered a verdict for the full amount in favor of the plaintiff, and, upon its motion for a new trial being overruled, the defendant brought the case to this court. The said lien arose by virtue of a contract which the plaintiff had with the defendant to supervise and oversee the construction of a building for the defendant. The contract provided that the plaintiff was to receive “for his services 10 per cent, of the cost of material and labor used in the erection and completion of said building.” In his petition the plaintiff alleged that the defendant company “paid for his services so rendered in accordance with the contract for the cost of the labor and material furnished in the building, except for the cork which was furnished and put into said building.” Plaintiff introduced no evidence (so far as the record shows) showing the specific cost of the labor used in installing the cork, but testified that “this material which went into the building is what they have not paid me for what I claim a lien for.” The only evidence as to the cost of the cork shows that it amounted to $1750.48, ten per cent, of which is $175.04. The jury' rendered a verdict in favor of the plaintiff for $245.71, which is $70.67 in excess of the amount authorized by the evidence. If the plaintiff will write off this excess, the judgment will be affirmed; otherwise a new trial is ordered.
2. The special grounds of the motion for a new trial show no reversible error, and a verdict of $175.04 is authorized by the evidence.
Judgment affirmed on condition.
Broyles, G. J., and Bloodworlh, J., concur.