*186The opinion of the Court was delivered by
Lowrie, J.Here was a verbal' agreement that $1600 worth of lumber was to be furnished for the erection of several houses; and, as only a part of it was furnished, defence is taken against the lien.
This raises the question, was the contract so incompletely performed that there can be no recovery on it ? Or more definitely, did the parties mean that the right to payment should d.epend upon full performance ? It is not probable, in a purchase of lumber, where- each load delivered is of use by itself, that such was their understanding. The Court admitted evidence of payments made on account of what was delivered, as indicating that the contract was not so understood by the parties, and this is thought to be error, but it is not. It is some evidence that the parties construed their contract differently from.what is contended for here, and it is right to take their construction. And we are not certain that we should have construed it differently without this evidence.
Judgment affirmed.