
    No. 17399
    No. 17400
    The London & Lancashire Indemnity Co. of America v. Board of County Commissioners of Columbiana County, et al. The Aetna Casualty & Surety Co. v. Board of County Commissioners of Columbiana County et al.
    Error to the court of appeals of Co-lumbiana county.
    TRIALS — (1) Jury waived — General findings without separation as to fact and law — (2) Presumption that court of appeals weighed the evidence, and defense not proven — (3) Contracts to do. possible acts not discharged by subsequent events or rules of law — (4) Defense of legal impossibility of performance, by World’s War — (5) Paid sureties not released by changes, when.
   MARSHALL, C. J.:

1. Where in the trial of an action at law a jury is waived and a general finding is made by the court and judgment entered thereon without separate findings of fact and conclusions of law, this court will only determine whether there is any evidence measured by the law applicable thereto under the issues made by the pleadings to support the judgment of the trial court.

2. Where in such case the answer pleads an affirmative defense and a general finding is rendered for plaintiff and the judgment is affirmed by the court of appeals on the general ground that no error is found, this court will not weigh the evidence but will presume that the court of appeals weighed the evidence and found that the affirmative defense w“as not proven.

3. An express contract to do an act which is possible in the nature of things and not contrary to law will not be discharged by subsequent events or rules of law which do not render performance physically impossible, but merely make performance more burdensome, expensive or difficult, nor where such subsequent events or rules of law might reasonably have been contemplated.

4. In order to make available the defense of legal impossibility of performance by reason of governmental interference in the control of production, of labor, and transportation, in the prosecution of the world war, it must be proven that there was either actual seizure or such direct intervention or governmental mandate as prevented further performance.

5.A paid surety will not be released from his obligation of suretyship by changes in the contract guaranteed by him unless such changes operate injuriously to affect materially his right and liabilities.

Judgment affirmed.

Wanamaker, Robinson, Jones, Matthias, Day and Allen, JJ., concur.  