McNeill

Action to recover $358.14 for certain lumber, shakes, and posts alleged to have been sold by plain tiff to defendant. The court found the facts for plaintiff as alleged in the complaint and gave judgment accordingly. Defendant appeals from the judgment and from the order denying his motion for a new trial.

The trees from which the lumber, shakes, and posts' were produced grew upon land which formerly belonged to one Hagans, between whom and one Sartain there was an • agreement that the latter might cut from the land the timber growing thereon, the stumpage to be paid for as ■ follows: Lumber, $1 per 1,000 feet; posts, $2.50 per 1,000 feet; shakes, $1 per 1,000 shakes; and some other products not involved. Hagans sold the land to plaintiff and assigned to her the above agreement, and she was recognized as succeeding to Hagans’ right thereunder. There is evidence that a certain quantity of lumber, posts, and shakes cut from the growing timber on this land, amounting to the sum claimed in the complaint at the rates fixed in the agreement, was delivered to defendant by Sartain and that defendant agreed to pay plaintiff for the same. The evidence was quite sufficient to support the…