While it is possible that counsel for plaintiff in error may have gone outside the record for some of the facts, their epitome of the pleadings and facts involved will sufficiently answer our purpose. In their brief counsel say: “The pleadings in the case show that some time in December, 1888, or January, 1889, the defendant Miller and the plaintiff Canfield made a trade, Canfield trading- off his interest in the furniture of a hotel in Omaha known as the “ Canfield House,” Miller agreeing to give in exchange therefor the lots in controversy in this case. At the time of the trade Miller was constructing some small dwellings on these two lots, and it seems the agreement was that he was to go on and complete the dwellings and mortgage the lots for $1,000, and then convey them, subject to this mortgage of $1,000, to Canfield. Canfield delivered possession,
In reference to the value of the property which Miller failed to convey to Canfield the testimony was conflicting, and in support of the verdict of $1,585 for Canfield there were fewer witnesses than there were of those whose testimony had a tendency to justify a verdict for a less amount. It was a case wherein the jury upon the evidence might properly have found that the estimate of'defendant’s witnesses as to value was more nearly correct; its finding for the plaintiff was not without ample support. Under such circumstances the verdict will not be disturbed upon the assumption that it was unsupported by the evidence. The suggestion in argument, that the giving of some instructions, and the refusal of others when asked, was erroneous, ■cannot be considered, because no exception is shown to have been taken to the ruling of the court on either of these questions. The judgment of the district court is
Affirmed.