Page:North Dakota Reports (vol. 48).pdf/451

 tions which are stricken out with a red pencil and including those portions contained in brackets and green ink which the plaintiff made in the contract after the contract was reduced to writing, and signed therein approved and consented to by the defendants. It is further stipulated that Exhibit F is a true copy of said original agreement and may be used upon the trial of this case for any purpose for which the original may be used. It is further stipulated that Exhibit D is the specifications referred to in said contract, and it should be admitted in evidence as such and as the. specifications according to which the schoolhouse was to be built, and that Exhibit E may be admitted in evidence as the original plans of the schoolhouse to be built by the plaintiff under this contract and according to which plans it was to be built."

Certainly and especially in view of the above stipulation, there was no error in excluding Exhibit A. Exhibit C, as it originally existed before the changes inserted into it by Kasbo and which is represented by Exhibit F, is the contract and the only contract between the parties, and the trial was had on that theory, and the plaintiff cannot now change its position. The 28 assignments of error relative to the insufficiency of the evidence to sustain the verdict need no lengthy discussion. If there is competent evidence in the record which will support the verdict, then all errors based upon the insufficiency of the evidence must be considered of no merit. An examination of the evidence not only discloses that there is some competent evidence, to support the verdict, but that there is an abundance of it. It is entirely unnecessary to set it forth in detail. It is sufficient to state that there is an abundance of evidence to show that the foundation of the building was improperly and poorly constructed; that the cement and gravel used therein were not in proper proportion nor in compliance with the specifications, and as a result, according to the testimony of Mr. Shannon, an architect of 25 years' experience, who examined the building, the foundation, and basement walls, it appears that the walls were soft; that they were very irregular and not straight and out of plumb in places; that the concrete was soft. He found a crack in the northeast corner and one in the southwest corner, stating that these were ruptures in the wall. In explaining what he meant by the walls being soft, he stated, in substance, that they are not of the density that concrete usually is; that it would rub off by hand, or pieces could be taken out of it. He stated that the walls were not safe nor durable and that as an architect he would not allow such a wall, but