
    (November 14, 1911.)
    
      G. F. HIBLER et al., Respondents, v. GRANT SMITH et al., Appellants.
    [119 Pac. 41.]
    Sufficiency of Evidence to Support Judgment.
    (Syllabus by the court.)
    1. Evidence examined and held sufficient to support the verdiet and judgment as to the first three eauses of action, and insufficient to support the judgment as to the fourth cause of action.
    APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, fiudge.
    Action for debt. Judgment for plaintiff. Defendants appeal.
    
      Affirmed as to first three causes of action, and reversed as to fourth cause of action.
    McBee & La Veine, and Chas. L. Heitman, for Appellants.
    The evidence fails to disclose any cause of action at the beginning of this suit. (Pomeroy, Code Remedies, secs. 453, 775; Feeder v. Balter, 83 N. T: 156; Lawson v. Tripp, 34 Utah, 28, 95 Pac. 520; Bach v. Brown, 17 Utah, 435, 53 Pac. 991; Thompson v. Bradbury, 5 Ida. 760, 51 Pac. 758.)
    In the fourth cause of action the collection of the price of the cars and rails is not even alleged. Plaintiffs do not pretend that they have ever paid for same and offer no evidence to that effect. In finding for plaintiffs on this cause, the jury wholly ignore the uncontradieted testimony of three witnesses. (1 Spelling, New Trial and Appellate Practice, p. 420; Chicago, B & Q. B. B. Co. v. Landaner, 36 Neb. 642, 54 N. W. 976; Michaud v. Freischeimer, 16 Mont. 472, 41 Pac. 231; Cunningham v. Gans, 29 N. Y. Supp. 979, 79 Hun, 434; Homire v. Bodgers, 74 Iowa, 395, 37 N. W. 972.)
    “When a party alleges a material fact, and offers no evidence in support of it, the court is authorized, if denied, to' find its nonexistence.” (Miller v. Engle, 3 Cal. App. 325, 85 Pac. 159.)
    The burden of proving tbe allegations by a preponderance of the evidence was on plaintiff, and if be failed to do so or if the evidence was equally balanced, be could not recover. {John Ainsfield Co. v. Rasmussen, 30 Utah, 453, 85 Pac. 1002.)
    J. L. McClear, for Respondents.
    There is a conflict as to all tbe evidence in this case; tbe court heard tbe evidence, saw tbe witnesses upon tbe stand, submitted tbe case to tbe jury under proper instructions, and the ease of Say v. Eodgin (Ida.), 116 Pac. 410, and Wolfe v. Ridley, 17 Ida. 173, 104 Pac. 1014, with a long line of decisions of this court, bold that tbe court does not err in refusing to grant a new trial where there is such conflict.
   AILSHIE, J.

In this ease tbe plaintiffs sued on foui causes of action. Defendants admitted tbe first cause a-action, and made a tender into court of tbe amount due.

It is claimed on this appeal that tbe evidence is not sufficient to support tbe verdict and judgment on tbe other three causes of action. Tbe evidence is sufficient to support tbe judgment as to all but the fourth cause of action, and as to that there is a total lack of material or substantial evidence to support the claim there alleged.

Tbe judgment will be affirmed as to tbe first three causes of action and is hereby reversed as to tbe fourth cause of action, and tbe case is hereby remanded with direction to grant a new trial on tbe fourth cause of action. Costs of appeal will be equally divided between appellants and respondents.

Stewart, C. J., and Sullivan, J., concur.  