On 24 November, 1924, the plaintiff and the Hagedorn Construction Company entered into a contract by the terms of wbieb the plaintiff was to sell and deliver to the defendant a certain quantity of crushed stone, and by a subsequent oral agreement the quantity was changed from ten thousand cubic yards to twelve thousand, and the price was reduced from $3.20 to $3.15 per cubic yard. On 8 June, 1925, the Hagedorn Company gave the plaintiff a trade acceptance in the sum of $4,506.72, payable 15 July, 1925. Tbe plaintiff alleged that on 8 December, 1925, it sold and delivered to the construction company 54.8 cubic yards of crushed stone at the price of $172.62, and 74 cubic yards of screenings at the price of $55.50. Suit was brought to recover the amount of these items.
Tbe defendants denied that the plaintiff bad complied with the contract, and alleged that at all times they bad been ready to perform their contract, and that final measurements bad not been made when the trade acceptance was given; that there was a shortage in the quantity of stone actually delivered) that the plaintiff bad agreed to make good the deficiency, and that the construction company was thereby induced to sign the acceptance. They alleged that by reason of the plaintiff’s failure to comply with the contract the construction company, in order to carry out its contract with the Highway Commission, bad to buy stone in the open market at a cost of $2,237.62 in excess of what the cost would have been if the plaintiff bad carried out its agreement, and that the construction company was entitled to recover this sum from the plaintiff, less $588.12, the balance alleged to be due the plaintiff for stone actually delivered, leaving as the amount due the defendant $1,649.50. Tbe defendant demanded judgment against the plaintiff for this sum. In response to the issues the jury found that the defendant was indebted to the plaintiff in the sum of $4,734.84 with interest, and that the plaintiff was not indebted to the defendant. Judgment was rendered for the plaintiff and the defendant appealed.
*775The defendants say that incompetent evidence was admitted, and that error appears in the charge as to the burden of proof on the first issue. These contentions embrace all the exceptions, neither of which can be sustained. There is
No error.