Counsel for the plaintiff earnestly insist before us that there is no evidence that the defendants gave the plaintiffs five days notice of the termination of the contract, but an examination of the record shows that there was no request to so instruct the jury, and no exception or assignment of error presenting the question, and the objection that there is no evidence to support a verdict or finding cannot be taken for the first time after verdict. S. v. Leak, 158 N. C., 643; Moon-Taylor Co. v. Milling Co., at this term.
The case was tried upon the theory that there was evidence that the notice had been given, and the court instructed the jury on the question of notice as follows, presenting fully plaintiffs’ contention:
“It being admitted by the defendants that the contract was terminated by them on 7 July, 1917, the burden would be on the defendants to satisfy you from the evidence that they had a right to terminate same under the provisions of said contract, and to show further that they have given the plaintiffs the written notice required by the terms of the contract, to wit, five days, and if they have failed to do so, you would answer the first issue ‘Yes.’ The court charges you that the defendants could not fail and refuse to comply with the provisions of the contract on their part, and later undertake to take advantage of the failure of the plaintiffs to comply with the provisions of the contract on their part and terminate the contract; and if you find these to be the facts, from the evidence and the greater weight thereof, the burden being on the plaintiffs, then you would answer the first issue ‘Yes.’
“In any event, the defendants could not terminate the contract without complying with the provisions of paragraph 11 of the contract, in regard to giving the certificate and the five days written- notice, and if the defendants terminated the contract without complying with the provisions of the contract, then the court charges you that this would be a wrongful termination of the contract on the part of the defendants, and they would be responsible and answerable to the plaintiffs in damages under the law as to the measure of damages which I have given you.”
The first and second exceptions are to permitting the defendants to examine the plaintiff in regard to a note for $1,000 executed by him to the Citizens National Bank of Durham, on which judgment had been obtained.
*701The plaintiffs alleged and undertook to xorove that they had not violated their contract, and that they had at all times a sufficient amount of material of proper quality and a sufficient number of properly skilled workmen to complete the building in the time called for in the contract.
The defendants undertook to show that the plaintiffs had wrongfully failed and refused to complete the building according to the terms of the contract, and that their failure to complete said building was due to the fact that they were financially unable to furnish sufficient material of proper quality and a sufficient number of properly skilled workmen to carry on said work, and the evidence was therefore competent on the question of the ability of the plaintiff to perform his contract.
The plaintiffs requested his Honor to charge the jury as follows, which was refused, and the plaintiffs excepted:
. “If the jury should find from the evidence, and from its greater weight, the burden being on the plaintiffs, that the defendants failed to comply with the provisions of paragraph 12 of said written contract and pay the plaintiffs the 80 per cent of the contract price to the contractors or plaintiffs on the work during its progress of construction, and if you should find from the evidence and its greater weight, the burden being on the plaintiffs, that this failure on the part of the defendants to perform the provisions of said contract on their part prevented and delayed plaintiffs from the performance of the provisions of said contract on their part, then and in that event plaintiffs would not be responsible for any such default, and you would answer the first issue ‘Yes.’ ”
It would have been error to refuse this instruction if the defendants had agreed to pay 80 per cent of the contract price during the progress of the work, but this was not the agreement of the parties. The defendants agreed in paragraph 12 to pay 80 per cent of the contract price “during its progress of construction or completion, upon itemized estimates made by the constructors and approved by the architects or superintendents,” and there is no evidence that they failed to do so.
The other exceptions are either to the statements of the contentions of the parties, which were made impartially, or to parts of the charge which, when considered in connection with the whole charge, are free from objection.
No error.