
    No. 407.
    Nichols et al. v. Pressler.
    Appellate Court. — Review.— Weight of Evidence. — Where there is evidence tending to support the finding and judgment of the trial court on all material points, the Appellate Court will not reverse the judgment on the weight of the evidence.
    Damages. — For damages held not excessive in an action to recover for stone drilling, see opinion.
    From the Monroe Circuit Court.
    12. A. Fulk and E. Corr, for appellants.
    
      H. G. Duncan and I. C. Batman, for appellee.
   New, J. —

This is an action by the appellee against the appellants to recover for what is termed in the complaint core stone drilling, alleged to have been done by the former for the latter.

The complaint is in two paragraphs, the first on an open account, the second on an alleged oral contract, by which the appellants agreed to pay the appellee two dollars for each foot he should drill.

Upon issues joined there was a trial by jury, with verdict and judgment for the appellee in the sum of $125.

The appellants moved for a new trial, which motion was overruled by the court, and exception saved.

Of the several errors assigned by the appellants, the only one discussed is the overruling of the motion fora new trial.

The grounds for a new trial noticed by counsel for the appellants in their brief are, that the verdict is not sustained by sufficient evidence, that the damages assessed by the jury are excessive, and that the court erred in instructions given to the jury. >

We have carefully examined the evidence, and, while it is not free from conflict, we think it tends to support the verdict.

It is contended by the appellants that the holes were to be drilled fifty feet deep or nothing was to be paid by them for the work done.

Filed Jan. 8, 1892.

None of the holes were drilled to that depth, but there is evidence which strongly tends to show that a depth so great as fifty feet was not required by the appellants while the work was being done, and that the work as done was accepted by them as satisfactory.

When there is evidence tending to support the finding and judgment of the trial court on all material points this court will not reverse the judgment on the weight of evidence. Flowers v. McCann, 1 Ind. App. 359 ; Litten v. Wright School Tp., 1 Ind. App. 92 ; Shields v. Moore, 84 Ind. 440.

The damages assessed by the jury do not seem to be excessive.

Two holes thirty-five feet deep each were drilled, which were not paid for, and there was evidence from which the jury might find that the work as done by the appellee was worth $2 per foot, which would amount to $140. The verdict was for only $125.

The instruction complained of was a correct statement of the law under the issues and evidence.

The judgment is affirmed, with ten per cent, damages and costs.  