
    HARRY J. SMITH v. TOWN OF MARY.
    
    November 12, 1915.
    Nos. 19,396—(59).
    Performance of contract — verdict sustained by evidence.
    The question whether or not the contract had been substantially performed was properly submitted to the jury, and there is evidence sufficient to sustain the verdict.
    
      Action in the district court for Norman county to recover a balance of $900 due upon a contract and $120 deposited by plaintiff as security for its performance. The case was tried before Grindeland, J., and a jury which returned a verdict for $900 and interest. From an order denying its motion for a new trial, defendant appealed.
    Affirmed.
    
      Christian G. Dosland, for appellant.
    
      Peter Matson and F. H. Peterson, for respondent.
    
      
       "Reported in 154 N. W. 963.
    
   SCHALLER, J.

This action was brought to recover the balance of the contract price for work and labor done in the building and construction of a certain road grade. The complaint alleges that the contract was fully performed; that a part of the contract price was paid, and demands judgment for the balance, with interest. The answer sets out the contract in terms, alleges that the same was not fully performed and specifies a number of particulars, in which the contractor failed to comply therewith.

The facts set forth in the answer, if substantiated, constitute a complete defense.

On the trial the only question litigated and the only one submitted to the jury was whether or not there had been a substantial performance of the contract. The evidence on this issue was voluminous and conflicting. The jury found for the plaintiff. Defendant moved for a new trial, and the motion being denied, appeals.

The only question raised here is whether or not the evidence is sufficient to sustain the verdict. We have examined the record and agree with the trial court that the question was properly for the jury and that the evidence is sufficient to sustain their verdict. The result is that, the order denying the motion for a new trial must be affirmed.

Order affirmed.  