
    J. M. Joplin et al. v. Caroline Thomas.
    
      Verdict—when not disturbed. A verdict based upon conflicting evidence will not be disturbed as against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Appeal from the Circuit Court of Franklin County; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the August term, 1906.
    Affirmed.
    Opinion filed March 15, 1907.
    W. H. Williams and W. S. Cantrell, for appellants.
    B. W. Pope, for appellee.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was an action in assumpsit, in the Circuit Court of Franklin county, by appellee against appellants. Trial by jury. Verdict and judgment in favor of appellee for $2,263.

The declaration consisted of the common counts, including the count for money had and received, and of a special count averring in substance that appellants were agents of appellee to sell her land in Franklin county, that it was their duty as such agents to inform appellee of all matters pertaining thereto and to obtain the highest price they were able to obtain for the land, but that they neglected and failed to perform their duty in that respect, and falsely and fraudulently represented to appellee that the land was not worth more than $1,200, when in truth and in fact it was worth $3,600, of which fact appellants had knowledge; that by these means appellants induced appellee to sell the land to them for $1,200. To this declaration appellants pleaded the general issue and special pleas denying agency, and denying joint liability.

ISTo error is pointed out as to the admission or rejection of evidence, nor as to the giving, modifying or refusal of instructions. The abstract does not include any instructions, either asked or given.

The only question we are called upon to consider is whether the evidence with all reasonable inferences deducible therefrom is sufficient to support the verdict of the jury. A detailed discussion of the evidence here would he useless. Upon full and careful consideration of it as a whole, we are of opinion that the jury was fully warranted in finding that every material allegation of the special count of appellee’s declaration was fully proven, and further, the jury was warranted in finding that within a month after appellants received the deed from appellee and before the commencement of this suit, appellants had sold said land, conveyed it and received therefor the sum of $3,600 cash, and that prior to the commencement of this suit they had received certain rents from said land.

Appellee made a good case under the common courts of her declaration, as well as under the special count. Appellants had received money to the proper use of appellee, “which in equity and good conscience they ought not to retain.”

The judgment of the Circuit Court is affirmed.

Affirmed.  