
    [No. 3652.]
    Burnett v. Lindsey.
    1. Appeals — Abstract. Where the appellant fails to insert in his abstract either the evidence, or the charge of the court, and the transcript shows that no exceptions were saved to the instructions, no objection taken to the testimony offered for the appellee, and no exceptions reserved to the rulings of the court upon appellant’s objection to testimony, the court will not review the judgment.
    2. Teial — Upon a Theory Variant From the Complaint, by consent of the parties, waives defects in the complaint.
    
      Appeal from Pueblo District Court. Hon. J. E. Bizer, Judge. °
    Mr. W. H. Burnett, for appellant.
    Mr. W. M. Swift, for appellee.
   Cunningham, Presiding Judge.

Lindsey, appellee, hereafter referred to as plaintiff, filed his complaint in the district court to recover a balance alleged to be due him from the defendant, Burnett, upon a written agreement or contract which called for the boring of a well by the plaintiff for the defendant. The agreement, which is set out in full in the pleadings, was carelessly drawn, and some of its provisions are not clear. The defendant answered, denying the material allegations of the complaint, and in his cross-complaint prayed for damages against the plaintiff. After the filing of a replication by the plaintiff, and an answer to the cross-complaint, the case proceeded to trial before a jury, resulting in a judgment in favor of the plaintiff.

Appellant has failed to include in' his abstract the instructions of the court, or any of them, and omits all reference to the evidence introduced on the trial. In his brief the appellant relied upon a single assignment of error, vis., “that the judgment of the court in said case is contrary to the law.” We have examined the original record, and find no exceptions whatever were saved to the court’s instructions, and almost no objections were interposed by appellant to the evidence offered by the plaintiff. Where objections were interposed by appellee and sustained by the court, appellant saved no exceptions to the ruling of the trial court. °

Under this state of the record, it is not our duty to review the case. Moreover, such inspection as we have made of the record convinces us that the insufficiency and defects of the plaintiff’s complaint, if any there were, were cured by the apparent theory adopted by both parties on the trial, and the evidence offered and received without objection on the part of the defendant.

The judgment will therefore be affirmed.  