It was competent for the defendant, notwithstanding his contract with McPherson, to enter into a new and independent contract with the plaintiff for the doing of the work and furnishing of the materials for which this action is *215brought. It was competent for the defendant to contract with plaintiff for such work and materials, and to bind himself to pay the plaintiff for them. The plaintiff could so far abandon his contract with McPherson, or waive his rights under it, and make a distinct contract with the plaintiff ; -and this case presents itself to the mind of the court as involving only a single question of fact, whether the defendant did so abandon the contract with McPherson and .enter into a new and distinct one with the plaintiff. The question is, whether there was any evidence upon which the jury were justified in so finding. Whatever the impressions of the circuit judge may have been at the time of overruling the motion for a new trial, an examination of the record satisfies us that there was such evidence, and that the motion was rightly overruled.
By the Court. — Judgment affirmed.