#### John E. Nyman and Hal N. Orr, Defendants in Error, v. Ferdinand G. Gasche and Mrs. Ferdinand G. Gasche, Plaintiffs in Error.

Gen. No. 20,208.

(Not to he reported in full.)

Abstract of the Decision,

1. Tbial, § 199 * —effect of conflicting evidence on motion for directed verdict. A motion for a directed verdict is properly overruled where the evidence is conflicting.

2. Appeal and ebbob, § 601*—necessity for preservation of motion for new trial for review of sufficiency of evidence. The weight or *116sufficiency of the evidence will not be considered in the absence of the proper preservation of a motion for a new trial.

*115Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.

Affirmed.

Opinion filed December 22, 1914.

Rehearing denied January 5, 1915.

Statement of the Case.

Action by John E. Nyman and Hal N. Orr against Ferdinand & Gasche and Mrs. Ferdinand G. Gasche for dental services rendered to the latter. From a judgment in favor of the plaintiffs, defendants bring error.

Assignments of error were predicated on the alleged insufficiency of the evidence bearing on the questions whether the contract for services was with one or both of the plaintiffs and whether there was a breach of contract and failure to perform on their part.

Knapp & Campbell, for plaintiffs in error; John R. Cochran, of counsel.

Rosenthal & Hamill, for defendants in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Barnes

delivered the opinion of the court.

*1163. Appeal and bbbob, § 800 * —insufficiency of transcript to preserve ruling on motion. The failure to preserve a motion for a new trial on the ground of the weight or sufficiency in the bill of exceptions is not obviated by a recital in the clerk’s transcript that such a motion was made and overruled.

4. Instbuctions, § 133*—presentation of opposing theories. An instruction framed to present plaintiffs’ theory of the case and not that of defendants’, which is presented by other instructions given at defendants’ request, is not erroneous.