
    Lutes v. Lerner.
    Opinion- delivered November 17, 1930.
    
      
      Harrison, Smith & Taylor, for appellant.
    
      Lowell W. Taylor and Keeble T, Herron, for appellee.
   Kirby, J.,

(after stating the facts). No error is alleged to have been committed by the trial court in the {first phase of the case, and the verdict of the jury is conclusive df that issue.

There was much testimony introduced, but it was shown that the potatoes delivered to appellant were “certified” indicating there had been four inspections of them before delivery, and others testified that the potatoes were examined upon being unloaded from the car and appeared to be in good condition, there being no evidence of their having become overheated or injured from cold. 'The appellant, himself, admitted that the potatoes were of good and uniform size and appeared to be in good condition when received by him.

The testimony upon the part of appellees by farmers of long experience conduces to show that the season of 19¡27 was so unusually wet at planting time as to cause most of the potatoes planted in appellant’s vicinity to rot in the ground and bring about almost a total failure of the potato crop. The weather bureau records were introduced in addition to the other testimony showing the unusual and excessive rainfall in March and April of that year. Appellant claimed to have commenced planting the potatoes on the 17th day of March, and the report showed it had rained on 7 preceding days of that month a total of 5.79 inches and 2.14 inches fell on the l'2th; and that the rainfall of 12 days in April from the 1st to the 16th was a total of 10.80 inches.

Some of the testimony of the witnesses, the operators of farms, as to the cause of the failure of the potatoes to sprout was objected to, but after a careful examination. of the record we are convinced that no error was committed in the introduction thereof, the witnesses all. shotwing themselves to be experienced in farming and the raising of potatoes and acquainted with the conditions surrounding the planting of the crop in April, 1927. The verdict is amply supported by the evidence, a decided preponderance of it in our opinion justifying the jury’s finding, while the burden was upon appellant to establish his defense.

We find no error in the record, and the judgment is . affirmed.  