
    [No. 7870.]
    Knowlton v. Knight-Campbell Music Company.
    1. Appeal and Error — Abstract. Where the abstract sets forth neither the instructions given nor those refused, errors assigned thereon will not be considered. (52.)
    2. - Verdict on Sufficient Evidence, though Conflicting, will not be disturbed. (52.)
    3. Trial — Eight to Open and Close. Where, under the issues made by the pleadings, the plaintiff is required to introduce evidence to establish his cause of action, he is entitled to open and close. (52.)
    
      Error to Denver County Court. Hon. G. W. Dunn, Judge.
    Mr. W. H. Hunt, for plaintiff in error.
    Mr. John F. Tourtelotte, for defendant in error.
   Opinion by

Mr. Justice Teller.

Plaintiff in error was the defendant in an action in the County Court, brought by defendant in error, to recover certain installments payable on a contract for the purchase of a piano. The action having been begun in a justice court, there are no pleadings by which the issues are defined.

From the statements of defendant’s counsel, which are preserved in the record, it appears that he presented, alternately, the defense of breach of oral warranties on the sale, and fraud and misrepresentation in procuring the contract of sale. The same course was pursued in the brief and in the oral argument. Under either view of the case the issue was whether or not the alleged statements were made. That was the issue tried.

It is urged that the court erred in not permitting the defendant the right to open ánd close; and that the verdict was against the evidence.

There are other errors assigned on the giving and the refusing of instructions, but as neither the instructions given nor those refused appear in the abstract, they will not be considered.

Defendant admitted the execution of the contract, but followed it by stating that he denied everything. This left the plaintiff under the necessity 'of introducing evidence to establish its cause of action.

There was, therefore, no error in denying defendant’s motion to be allowed to open and to close the cause.

There was a clear conflict of evidence, on the matter of the statements which are alleged to have been warranties, or misrepresentations, and the verdict appears to have been justified, and ought not to be disturbed.

There being no error in the record, the judgment is affirmed.

Chief Justice Gabbert and Mr. Justice Hill concur.  