
    The State Insurance Company v. William Curry.
    
      Instruction — Evidence—Defective Record. In the absence of the evidence, or any statement of its purport, it cannot be said that an instruction requested by one of the parties, however correct as an abstract statement of the law, was applicable to the case, or that its refusal was material error.
    
      Error from Butler District Court.
    
    The opinion states the case.
    
      W. M. Duff and Thos. Eh. Bain, for plaintiff in error.
    
      G. P. Aikman, for defendant in error.
   The opinion of the court was delivered by

Johnston, J.:

This was an action brought by the State Insurance Company against William Curry, to recover $33.50, alleged to be due upon a promissory note executed by Curry on December 31, 1885, in payment of a premium on a policy of insurance. The answer of the defendant was, that there was a failure of consideration; that the company had not complied with the laws of the state of Kansas; and that the policy issued to Curry by the company was not in accordance with the agreement of the parties. The company brings the case to this court, alleging that the district court erred in not giving certain instructions which it requested.

The objection to the ruling of the court is not available, for the reason that neither the evidence nor any statement of its purport is preserved in the record. In the absence of the evidence, it- cannot be said that an instruction, however correct as an abstract statement of the law, was applicable to the case, or that its refusal was material error. (Auld v. Kimberlin, 7 Kas. 601; Town of LeRoy v. McConnell, 8 id. 273; Head v. Dyson, 31 id. 74; Comm’rs of Allen Co. v. Boyd, 31 id. 765; Stetler v. King, 43 id. 316.)

The judgment of the district court will be affirmed.

All the Justices concurring.  