Action to recover upon an express contract alleged to have been entered into by and between plaintiff and the testator of defendant for services rendered by plaintiff to said testator.
From judgment dismissing the action, upon for nonsuit, at close of all the evidence, plaintiff appealed to the Supreme Court. Conceding that there was some evidence tending to sustain plaintiff's allegation of an express contract by which defendant's testator agreed to pay plaintiff for services to be rendered to him by plaintiff, there was no error in the judgment dismissing the action, at the close of all the evidence, under C. S., 567. There was no evidence tending to show performance by plaintiff of the alleged contract.
In the absence of such evidence, plaintiff cannot recover in this action. The judgment is
Affirmed.