Gothberg

This is a suit to recover the balance of monies allegedly owing on a contract, or series of contracts — some of them oral— for the construction of a garage. Plaintiff Gothberg was the builder and defendant Carr the owner of the premises. In his answer Carr alleged failure of performance on the part of Gothberg, and denied that there had been substantial performance. He interposed also a cross-complaint claiming damages for alleged violations of the agreements and for shortcomings in performance.

The case was tried to a jury. At the close of the evidence each party moved for a directed verdict, and both motions were denied. The jury returned a verdict in favor of Gothberg awarding him an amount somewhat less than he had claimed, and awarding Carr damages in a lesser amount on his cross-complaint. The court subtracted the lesser sum from the greater and entered judgment for Gothberg in the amount of the difference. Both parties moved for a new trial, and their motions were denied. Both have appealed from the judgment.

The evidence pro and con appears in conflict throughout. The trial of the cause consumed several weeks, in the course of which the jury, with the consent of the…