
    Never-Split Seat Company v. Climax Specialty Company.
    [No. 5,709.
    Filed October 11, 1906.]
    1. Appeal and Error. — Weighing Evidence. — The verdict is conclusive on appeal in cases of conflict of evidence, p. 616.
    2. Trial. — Instructions.—Not Applicable to Evidence. — Instructions, not applicable to the evidence, though correct statements of the law, are properly refused, p. 617.
    From Gibson Circuit Court; O. M. Welborn, Judge.
    Action by the Climax Specialty Company against the Never-Split Seat Company. From a judgment for plaintiff, defendant appeals. Affirmed.
    
    
      Herman & Miedreich, for appellant.
    
      Van Buslcirlc & Osborn, for appellee.
   Roby, J.

This is an action to recover the agreed price of 5,000 pairs of brass closet hinges. They were made for the Crown Seat Company, a corporation, whose business has been taken over by the appellant company, which is admittedly liable for claims against it.

The goods were manufactured under a contract, the terms of which are contained in certain letters and telegrams. The order was “to make us a hinge as your ‘O’ with arms same length as samples sent you. * * * Tour ‘0’ hinges cannot be used on oval seats because the arms are too short. If this is correct, book our order for 5,000 pairs and send us 1,000 pairs at once.”

The sample accompanied the order. It is not disputed that the goods were made and shipped, and partly paid for. Appellant claims that they did not correspond to the sample. There is a sharp conflict of evidence, and the findings of the jury must be taken as settling the fact against it. Indeed, careful consideration leads to the conclusion that the verdict is sustained by the weight of evidence.

The court submitted tbe cause to the jury upon clear and correct instructions. Instructions one and two, requested by the appellant, state abstract propositions of law correctly, but are not applicable to the facts or issues. No reversible error appears from the record.

The judgment is therefore affirmed.  