Turner, J.
This being a suit for a balance alleged to be due on an open account, wherein the defendant was charged with a cash item and credited with various amounts representing the value of certain timber accepted in part payment; and the evidence adduced at the trial disclosing that the plaintiff’s cause of action (if any) was for a breach of a covenant with respect to the number of feet in a quantity of hewn timber sold and delivered to him for cash, under an agreement between himself and the defendant to abide by a measurement of the timber subsequently to be made by a disinterested third person, a recovery in favor of the plaintiff was unwarranted, he having failed to prove his case as laid.
Judgment reversed.
All the Justices concur.