
    H. H. Haddock, plaintiff in error, vs. Albert W. Bivings, defendant in error.
    Where the evidence was conflicting, this court will not interfere with the discretion of the court below in refusing a new trial.
    New trial. Before Judge McCuthen. Whitfield Superior Court. October Term, 1874.
    This case is sufficiently reported in the decision.
    
      W. K. Moore, by brief, for plaintiff in error.
    Shumate & Williamson, for defendant.
   Warner, Chief Justice.

This was an action brought by the plaintiff against the defendant, to recover damages for the non-performance of a contract to build a wall and two stacks of chimneys. On the trial of the case, the jury, under the charge of the court, found a verdict for the defendant. The plaintiff made a motion for a new trial, on the ground that the verdict was contrary to the evidence and the principles of justice, and for alleged error in the charge of the court, which was overruled, and the plaintiff excepted. The evidence on the trial, as to the performance of the contract by the defendant in a Avorkmanlike manner, was conflicting. There Avas no error in the charge-of the court as set forth in the record, and this court is not a jury to pass upon the facts of the case. The court below refused to set aside the verdict, and we will not interfere with the exercise of its discretion.

Let the judgment of the court beloAv be affirmed.  