
    Lorenzo R. Cummings vs. Charles H. Petsch.
    June 25, 1889.
    
      Held, that the verdict of the jury was justified by the testimony.
    Action for services for 49 months under an alleged contract at $15 per month. Trial in the district court for Bamsey county, before Kelly, J., and verdict of $701 (the full'amount claimed) for plaintiff. Appeal by defendant from an order refusing a new trial.
    
      C. D. é Thgs. D. O’Brien, for appellant.
    
      E. St. Julien é W. S. Cox, for respondent.
   By the Court.

1. The appellant’s claim , of a fatal variance between the pleadings and the proof in this case is disposed of by saying that there was no suggestion of this point in the court below, and, further, that the settled case shows that, just before the plaintiff rested, the defendant admitted that if the former proved the alleged nontract he would be entitled to recover.

2. The dispute between these parties was as to the making of a ■certain contract. The plaintiff testified in the most unequivocal manner that it had been made, and was flatly contradicted by the •defendant. The jury decided as between these witnesses, and the verdict cannot be disturbed. It was justified by the evidence.

Order affirmed.  