Burner

Action by plaintiff to recover the sum of $2,500 as damages for failure of the defendant to receive and pay for 65,000 board feet of lumber. Plaintiff had judgment for the sum of $1,400. Defendant appeals. The complaint, among other things, alleges as follows:

To this complaint the defendant interposed a demurrer worded as follows:

The defendant’s demurrer being overruled, an answer was filed in which the defendant, after making denials, for further defense alleged as follows:

By reference to the allegations of the complaint and the paragraph of the defendant’s answer herein set forth, it will be seen that the only issues between the parties is as to the number of feet of lumber ordered, the refusal of the defendant to accept and pay for all of the lumber, and the amount of damages.

Under the circumstances pertaining to this case the vendor of the lumber would ordinarily have three remedies: 1. Standing strictly upon the sale, retain the property for the vendee and sue the vendee for the purchase price; 2. Acting as agent of the vendee, the vendor might sell the property and then sue to recover the difference between the contract price and the price obtained on a resale; 3.…