Opinion by
Judge Pryor :Under the contract between the appellant and the appellee .by which the former agreed to saw and delived to the appellee at the appellant’s mill eight thousand feet of lumber, the appellee was not vested with any rights or title to it, until it was measured and set apart for him, as recited in the instruction given * * * by the court below. The stacking of the lumber or measuring a portion of it did not constitute a delivery until actually received by the defendant. The facts proven on the trial authorized the finding by the jury. Upon the application for a new trial the affidavits of those who sawed the lumber or who were in or about the mill the whole time the sawing was going on, are filed, and their statements, if true, might have produced a different result, but there is no sufficient reason given why these persons were not examined as witnesses. It is true the affidavits stated that the affiants had repeated conversations with the appellant and failed to disclose to him what they knew about the case, still the appellant knew they were about the mill all the time, some of them engaged in running it, and they were the very witnesses he should have examined upon the trial — the witness who lived in a distant county or town should have given *701his deposition, or the appellant made some effort to continue the case on account of his absence. The motion for a new trial was properly overruled, and the judgment of the court below is affirmed.
Bemchamp, for appellant.