
    No. 10,115.
    Tennigkeit v. Burlington State Bank, et al.
    Decided May 1, 1922.
    Action for breach of contract. Judgment for defendants.
    
      Affirmed.
    
    1. Appeal and Error — Fact Findings. ■ Findings of fact by a jury, based on conflicting evidence, will not be disturbed on review.
    
      Error to the District Court of Kit Carson County, Hon. J. W. Sheaf or, Judge.
    
    Mr. Frank L. Hays, for plaintiff in error.
    Mr. Louis Vogt, for defendants in error.
   Mr. Justice Allen

delivered the opinion of the court.

This is an action upon a contract. The complaint alleges, in substance, that the defendant A. W. Winegar deposited with the defendant The, Burlington State Bank the sum of $500, and that it was agreed among these parties, the plaintiff and the above named defendants, that this sum should be paid over to plaintiff in the event that defendant Winegar failed to transfer certain real estate to plaintiff. A breach of this contract is alleged. The answer ádmits the contract, but sets up a subsequent agreement between plaintiff and Winegar whereby the contract set up in the complaint was cancelled in consideration of Winegar’s selling to plaintiff another tract of land. Compliance with such subsequent contract is then alleged. The replication denies that the second transaction was agreed upon as a substitute' for the first. A trial to a jury resulted in a verdict for defendants, and plaintiff has sued out this writ of error.

The principal contention of plaintiff in error is to the effect that the verdict is not supported by the evidence. The issue of fact over which there is a dispute is whether plaintiff accepted the second conveyance as one in lieu of the former one contemplated in the contract he relies on, or whether it was a separate and distinct transaction. There is a conflict in the evidence, but there is sufficient evidence in the record to support a verdict for defendants.

Error is assigned to the admission of certain testimony. The abstract of the record, however, shows no reversible error.

The judgment is affirmed.

Mr. Justice Teller, sitting for Mr. Chief Justice Scott, and Mr. Justice Denison concur.  