¶1(dissenting), expressed an opinion to the effect that by the provisions of the contract, the plaintiff was to take and pay for the lumber “ spoiled,” and all not sawed according to-the contract was within that description; that the defendant could not accept, remove and dispose of the lumber, and after-wards insist that the sawing was not done according to contract, and claim.damages on that ground; as his right to such damages did not survive the acceptance of the lumber by him.
¶2Judgment reversed, and new trial ordered, costs to abide the event.