#### Marion Machine, Foundry and Supply Company v. Federal Oil Marketing Corporation.

4-3275

Opinion delivered January 22, 1934.

*654 Walter L. Goodwin and J. S. Brooks, for appellant.

Jeff Davis and Conard E. Cooper, for appellee.

Kirby, J.,

(after stating the facts). Appellants insist that the court erred in directing the verdict against them; but it has frequently been held that, under such circumstances of submission, the court has the right to direct a verdict, the parties having by such request waived the right to a verdict by the jury, and the decision of the court has the same effect as would have been given to the verdict of a jury, the evidence viewed in the light most favorable to appellee. St. L. Sw. Ry. Co. v. Mulkey, 100 Ark. 71, 139 S. W. 643; Upson v. Robinson, 179 Ark. 600, 17 S. W. (2d) 305; and Stewart v. Budd, 169 Ark. 363, 295 S. W. 748.

*655Appellants failed to sustain the burden of proof, which was upon them, to establish an abandonment of the lease as claimed; and there was no claim of any right to a forfeiture because of a cessation of operation of the wells, nor any claim of a right to cancellation of the lease because thereof.

The testimony in appellee’s favor was very substantial, it being doubtful if there was not a decided preponderance thereof, and at least it was amply sufficient to support the verdict as directed. The appellants clearly' had no right to take possession of and appropriate the casing out of the old wells under the circumstances, there having been no abandonment thereof by the lessees, and the lease not having expired or terminated by reason of forfeiture or otherwise; and the court committed no error in so holding.

The judgment is affirmed.