(dissenting).
I respectfully dissent. Only point on appeal is that the judgment precluded defendant from presenting evidence on what he urges were disputed facts raised by the pleadings and the discovery process prior to the time plaintiff moved for a summary judgment.
This appeal well might be and should be dismissed, and plaintiff’s judgment affirmed, for the simple reason that the point presented here was never raised in the court below. No motion or request was made for an amendment, deletion or any other modification of the judgment, nor was any attack whatsoever leveled against the findings, conclusions or the judgment. The only motion made by defendant before or after the unassailed judgment was entered was one to retax costs, — nothing else, — and everything urged in defendant’s brief was raised for the first time on appeal.
However, a response to some of the objections urged by defendant might be apropos in light of the observations and conclusion elicited in the main opinion.
Defendant owned the truck. His brother,. Clarence, at defendant’s instance, delivered the truck to plaintiff for repairs and picked it up when it was finished, signing a work order and statement showing items of repair. Although the charge for each item was not shown thereon, it subsequently was. placed on a duplicate, which defendant was furnished in due course. There had been a preliminary discussion of the estimated costs which everyone conceded was $1800' to $1900. On taking the engine out, plaintiff advised that the estimate would have to be revised upward $400 to $500, to which defendant agreed, making an admitted willingness to pay up to $2400. The ultimate bill rendered was $2784, a figure not far out of line from the estimate. All the above defendant admits. After rendition of the bill, defendant, without complaint,, paid $500 to plaintiff, who later on asked *443for the balance, but received neither any additional money nor any complaint from •defendant until after suit was filed a year later, when defendant said for the first time that no payment was made because the truck was not running right. All of this was without controversion.
One of the complaints of defendant was that the trial court granted the defendant’s motion “without even considering the court file or the depositions.” Such statement apparently was based on counsel for the •defendant’s gratuity that Clarence Osgu-thorpe’s deposition, mentioned by the court along with others, at the time of the judgment, “had not been filed in the court and is not even a part of the record on appeal.” This somewhat irrational claim of judicial indolence perhaps was the result of amnestic, loose talk, since defendant’s counsel himself, as the record, without contradiction, clearly shows, eliminated Clarence’s ■dialogue which was unavailable, and substituted it with Clarence’s monologue, — his affidavit, no less, the prologue of which ■said that “Clarence Osguthorpe deposes, under oath, and says” : etc.
Defendant claims that there was a genuine issue of fact as to whether there was a meeting of the minds and for how much. It is undisputed that defendant agreed to pay for the repairs, and gave a green light for $2400. From the uncontroverted facts and admissions it appears that there was a meeting of the minds for that specific amount, and reasonably within the “more or less” ambit of an estimate. For that amount there was no question as to the propriety of a summary judgment. It could be argued, with little reason or logic, in my opinion, that there might be a question of fact with respect to $384, but there was no urgence even as to that amount in the trial court.
Defendant asserts also that there was a genuine issue of fact with respect to the amount of attorney’s fees. If this were the case, defendant certainly did not press such contention before the trial court, nor did he urge anything with respect to liability under the written, itemized statement of charges, nor of the question of his brother Clarence’s agency, nor anything else. Defendant simply did nothing other than to accept the judgment as entered and then for the first time on appeal raised but one point and some arguments to support it, which appears to be a departure from usual appellate principles and practice.