Baushka v. McKey
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Opinion of the Court
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Siebecker, J.
The first error assigned pertains to rulings of the court in receiving and rejecting evidence. We find no record of the action of the court coining within this alleged *361 error to inform us what actually took place on the trial, nor are there any exceptions in the bill to any rulings. We cannot, therefore, consider this assignment of error.
Error is assigned on the ground that the verdict is contrary to the evidence. An examination of the record discloses evidence tending to establish an agreement between the parties for drilling a well on defendant’s premises, that the well should have a water supply sufficient to furnish defendant water for his farm and stock purposes, as the farm was then conducted, and that the sufficiency of the well was to be tested by a farm windmill. It furthermore appears that plaintiff,' under the arrangement, drilled a well upon defendant’s premises, which was tested by himself in the presence of others, showing, in the opinion of the witnesses, a sufficient water supply to meet the agreed requirement, and that defendant refused to erect a windmill to test its capacity. Other evidence in the case was in conflict with this evidence, thus raising an issue of fact which was submitted to the jury. The jury found that plaintiff had fully performed, the contract, and awarded him the amount due. An examination of the record shows that the jury were justified by the evidence in finding, either that the plaintiff fully performed, or that he had failed to perform, the terms of the contract. This question was determined by the weight and credibility they gave to the testimony of the different parties and witnesses. An examination of this testimony makes it very plain that the verdict is not only not against the clear preponderance of the evidence, but that it is well supported by the testimony. From these conclusions it necessarily follows that the case was properly submitted to the jury for a decision. The'verdict of the jury must be sustained.
By the Court. — Judgment affirmed.
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