
    [No. 5975.]
    Masterson v. Monk.
    1. Issues—How Ascertained—: Where there are no written pleadings, as in cases originating before a justice of the peace, the issues must be gathered from the testimony and the instructions.—(363)
    2. Appeals—When the Facts Will Be Examined—A verdict based upon conflicting evidence, there being sufficient evidence to sustain it, will not be reviewed.—(364)
    
      Appeal from El Paso County Court — Hon. Bobert Kerr, Judge.
    Mr. M. Masterson, for appellant.
    No appearance for appellee.
   Mr. Justice Gabbert

delivered the opinion of the court:

The appellant, Masterson, executed and delivered to the appellee, Monk, his promissory note in the sum of three hundred dollars. When it matured, suit was brought thereon by Monk before a justice of the peace. Judgment was rendered in favor of the plaintiff, from which the defendant appealed to the county court. The case was there tried before a jury. Verdict was rendered in favor of the plaintiff, and judgment entered accordingly. ' The defendant appeals.

There were no written pleadings, and the issues between the parties must be deduced from the testimony and instructions of the court. The note was given in consideration of the sale of stock by the plaintiff to the defendant, in the Fortuna Gold Min-, ing and Leasing Company. The plaintiff assigned and delivered the certificates of stock, but the officers of the company refused to make the transfer, upon the ground that an agreement had been entered into whereby this stock, in connection with stock belonging to other parties, should not be sold except by the mutual agreement of all parties to this arrangement. The defendant denied that he had any knowledge of this agreement. The plaintiff testified that, prior to the consummation of the transaction, 'the defendant was fully advised in relation to this matter. There is also testimony to the- effect that after defendant purchased the stock, he assented to the arrangement—that is, he became; one of the parties to the pool. The defendant denies that he consented to such an arrangement, except upon the condition that he should be given a written contract by the company, which was never executed, whereby he would have the exclusive sale of the treasury stock of a corporation. This conditional assent is denied by evidence introduced on behalf of the plaintiff. Such, in brief, were the issues between the parties submitted to the determination of the jury, with the result, as stated, that they ,w.ere resolved in favor of the plaintiff.

The evidence is sufficient to support the findings of the jury on the issues submitted for their determination. Where there is a substantial conflict in the testimony, bearing on the issues between the partie's, and there is sufficient evidence to support the findings of the jury thereon, such findings will not be disturbed on review.

The judgment of the county court is affirmed-.

Affirmed.

Chíbe Justice Steele and Mr. Justice Hill concur. '  