
    David Wilson et al., etc., v. The City of Phillipsburg.
    No. 13,630.
    (77 Pac. 582.)
    Error from Phillips district court; John E. Hamilton,. judge.
    Opinion filed July 7, 1904.
    Affirmed.
    
      T. M. Nolle, C. W. Chase, George Whitsett, and Guy Bis sell, for plaintiffs in error.
    
      W. JET. Pratt, C. A. Lewis, and R. F. Stinson, for defendant in error.
   Per Curiam:

This proceeding in error was originally supported by a case-made, attached to the petition in error. The case-made was settled and signed without jurisdiction^ and. yielding to that fact, the plaintiff in error substituted a transcript of the record in the district court for the case-made. The errors assigned involve a consideration of testimony and of instructions given and refused. The evidence could be brought upon the record of the district court in no other way than by a bill of exceptions, and no such document appears in the transcript. Therefore, questions arising upon the admission and exclusion of evidence may not be examined. Most of the instructions given and refused can be interpreted only by the evidence; hence, they will not be considered.

One instruction is assailed as imposing a wrong interpretation upon a writing admitted by the pleadings. The instruction uses practically the language of the writing, and ’.declares its true intent.

It is claimed that two instructions are contradictory of each other, but they ate not so. One relates to the conduct of a work of construction, and the other relates to the sufficiency of the completed work to fulfil the purpose for which it was intended, as a result of construction according to a given contract and plan,

The judgment of the district court is affirmed.  