#### H. H. Gladville and W. E. Gladville v. Stephen Richardson.

I. Instructions—Error Without Injury.—It appears from the evidence that the verdict in this case is clearly right, and the court declines to disturb it merely for the reason that there is error in the instructions,.

*319Transcript, from a justice of the peace. Error to the County Court of Moultrie County; the Hon. Isaac Hudson, Judge, presiding.

Heard in this court at the May term, 1897.

Affirmed.

Opinion filed September 13, 1897.

E. M. Peadro, attorney for plaintiff in error.

E. A. Bichard son, attorney for defendant in error.

Mr. Justice Glenn

delivered the opinion of the Court.

This suit was brought by the plaintiffs in error before a justice of the peace of Moultrie county to recover the contract price for boring a well on the premises of the defendant in error. The case was tried by a jury in the justice’s court. The finding of the issues by the jury were for the defendant, and judgment was entered upon the verdict. From this judgment the defendant brought the case by appeal to the County Court of Moultrie County. A trial was had in that court by a jury, and the jury, being unable to agree, were discharged. Subsequently another trial ivas had in the County Court of Moultrie County by a jury, that found the issues for the defendant, and judgment ivas entered upon the same for the defendant for costs.

The plaintiffs in error bring the case by writ of error to this court.

The plaintiffs in error by the terms of the contract were to bore a well upon the premises of the defendant in error that would furnish plenty of water for his stock and house, use and curb the well, and put in a pump if they got water easily, for which, they were to receive $100, but if in this they failed they were to receive nothing.

The parties substantially agree as to the terms of the contract.

By the terms of the contract the plaintiffs were to sink a well that would supply water sufficient for defendant’s stock and household purposes. That in this they failed is clearly established by the evidence. The supply was not sufficient even for household purposes.

• It is contended on- behalf of plaintiffs that - this failure -is *320due to the fact that the defendant did not use proper tests to procure water, and would not allow them to experiment in that regard. The evidence does not sustain them in either of these contentions. The most that may be said is, that the evidence is somewhat conflicting. The verdict of the two juries indicate with whom the weight of the evidence rests, and we are not disposed to disturb the findings of the jury, notwithstanding all the instructions given on behalf of the defendant save one may be tainted with error, and we affirm the judgment of the court below.