
    [Decided November 15, 1897.]
    WALDMAN v. CONNELL.
    From Multnomah: ILmitwell Hurley, Judge.
    
      Messrs. J. C. Moreland and B. Killen, for appellant.
    
      Mr. M. L. Pipes, for respondents.
   Per Curiam.

The plaintiffs brought a suit to cancel and rescind a contract for the purchase by them from the defendant of an undivided three eighths interest in eighty acres of land near the City of Portland, and to recover the money paid thereon, on the ground, inter alia, that since making the contract the defendant has sold and disposed of a large portion of the property agreed to he conveyed, and thereby rendered himself unable to comply with his agreement. The answer admits the inability of the defendant to comply with the original contract, but as a defense to this suit avers that after making such contract the plaintiffs and defendant mutually agreed to and did segregate their interest in the eighty-acre tract, the plaintiffs taking a certain thirty acres thereof, and that such agreement was consummated by a surrender by plaintiffs of the former contract and the acceptance of a new one in lieu thereof for the thirty-acre tract. The plaintiffs deny this defense in toto, and claim that no such agreement or contract was ever entered into by them, and that no such surrender of the first contract and ' the acceptance in lieu thereof of a contract for thirty acres ever took place. The evidence upon this question is conflicting and in many respects irreconcilable. The court below found in favor of the plaintiffs, and after a careful reading of the record and the briefs we do not feel authorized to say that it was. in error in so doing, and for this reason the decree is affirmed.

Affirmed.  