
    Dunlap v. Jones.
    A judgment, where the cause is tried by the Court, can be set aside only on the same preponderance of evidence that would invalidate a verdict. Where the record does not profess to set out all the evidence, its insufficiency to support the judgment cannot be assigned for error.
    ERROR to the Clark Circuit Court.
    
      Saturday, December 31.
   Davison, J.

Jones sued Dunlap in covenant. The declaration sets forth a contract sealed by the parties, whereby Dunlap, in consideration of 200 dollars, agreed with Jones to construct for him a dwelling-house, in a workmanlike manner. The payment of the money is averred and certain breaches specifically assigned. Plea, performance, with an agreement that all special matter should be admissible under it. The cause was submitted to the Court by consent. The Court found for the plaintiff below. Motion for a new trial overruled. Judgment on the finding of the Court.

Whether the proof was sufficient to sustain the finding of the Court is the only question presented by the record.

The judgment, where the cause is tried by the Court “ can be set aside only on the same preponderance of evidence that would invalidate a verdict.” 4 Blackf. 311.—5 id. 108.—6 id. 507. But the record does not profess to set out all the evidence given on the trial. Therefore its insufficiency to support the judgment cannot be assigned for error. 5 Blackf. 146.—8 id. 196. However, from what is set out, the right of Jones to recover is sufficiently shown.

H. F. Smith, for the plaintiff.

W. T. Otto, for the defendant.

Per Curiam.

The judgment is affirmed, with 10 per cent, damages and costs.  