
    Robert B. Smith, appellee, v. George B. McKay, appellant.
    Filed January 24, 1912.
    No. 16,641.
    1. Appeal: Conflicting Evidence. The finding of a jury on conflicting evidence will not be disturbed on appeal unless manifestly wrong.
    2.-: Harmess Error. Rulings which did not prejudice appellant in any way cannot be made grounds of reversal.
    Appeal from the district court for Dawson county: Bruno O. Hostetler, Judge.
    
      Affirmed.
    
    
      George G. Gillan and H. D. Rhea, for appellant.
    
      T. M. Hewitt and W. A. Stewart, contra.
    
   Rose, J.

The petition contains two causes of action. In the .first the sum of $343 is demanded for making a concrete foundation and cement floor for a building in Lexington according to the terms of an oral contract between plaintiff and defendant, and the second is a claim consisting of four items, amounting to $16.75, for labor and materials furnished in locating and repairing the foundation mentioned. Defendant in Lis answer admits that the oral agreement was made, but alleges that plaintiff violated it by making the foundation too narrow for the building planned. The second count is answered by a plea of payment. Defendant also filed a cross-petition in which he demanded $550 as damages for plaintiff’s failure to make the foundation the specified width. The jury found in favor of plaintiff on the first count for the full amount of his claim, and on the second for $7.37. From ,a judgment for the sum of these amounts and interest defendant has appealed.

It is argued as a ground of reversal that the evidence is insufficient to sustain the verdict. The principal question litigated is: Did the foundation and floor as completed conform to the stipulated dimensions? On conflicting proof, with abundant evidence to sustain the verdict, the jury determined that issue in favor of plaintiff, and thereby settled it for the purposes of review.

In relation to the claim for damages pleaded in the cross-petition, defendant complains of instructions and of rulings on evidence. If the trial court made mistakes in those particulars, the errors were harmless, because the jury found on an issue properly submitted that plaintiff did not violate the oral agreement in any way.' Since it is established that plaintiff complied with the contract, defendant is not entitled to recover damages based’solely on allegations that he violated it. No prejudicial error appearing, the judgment is

Affirmed.'  