#### Samuel Duncan v. John C. Pfeiffer et al.

1. Verdict—when not disturbed. A verdict will not be set aside on appeal where it is not against the preponderance of the evidence and no substantial error has been committed by the trial judge.

Action on the case. Appeal from the Circuit Court of Shelby County; tire Hon. Samuel L. Dwight, Judge, presiding.

Heard in this court at the May term, 1905,

Affirmed,

Opinion filed October 9, 1905.

*64Walter 0. Headset, for appellant.

Chafes & Chew, for appellees.

Me. Justice G-est

delivered the opinion of the court.

The declaration is in case and avers that appellant Duncan employed appellees to furnish and erect a windmill in a well on appellant’s farm, that they failed and refused to do so, whereby damage accrued to appellant. The evidence shows that Duncan is a farmer living on his farm three miles north of Strasburg, in Shvlby county, and appellees are dealers at Strasburg in dry goods, groceries, machinery and implements, but that they do not keep windmills in stock; that they ordered a mill from Chicago; that the mill came by rail to the depot at Strasburg and there remained and was not put up. The contract, whatever it was, was oral. Under the contract alleged it would be the duty of defendants to take the mill to the farm and erect it. The burden is upon plaintiff to prove a contract as alleged. As claimed by defendants the arrangement was that they should order a mill for plaintiff, that he should take it to the well on the farm, and when so taken defendants would erect it. What the provisions of the contract were was for the determination of the jury from the evidence. The evidence in relation thereto is contradictory. If the jury found from the evidence that the contract was as claimed by the defendants, there could be no recovery for plaintiff. The jury found for defendants, the court entered judgment on their verdict, and we cannot say that the verdict and judgment are not warranted by the evidence.

Complaint is made of instructions five and six given on behalf of defendants. We see no substantial error in them. That the verdict is against the evidence and that instructions for defendants above mentioned were erroneous are the only grounds urged for reversal.

The judgment is affirmed.

Affirmed.