
    Thomas Warren v. W. O. Disney.
    
      No. 13,341.
    (74 Pac. 1134.)
    Error from Logan district court; Lee Monroe, judge.
    Opinion filed December 12, 1903.
    Affirmed.
    
      W. PL. Wagner, and Roark c& Roark, for plaintiff in error.
    
      Charles L. Kagey, and C. L. Hunt, for defendant in error.
   Per Curiam:

This was an action upon a promissory note, the defense being the statute of limitations. The note included a contract retaining title to the machinery for which it was given, as security for its payment. Plaintiff testified that he had sold the machinery and applied the proceeds on the note. The only issue presented under the instructions, which were not excepted to, was whether the defendant had authorized such sale. The jury found for the plaintiff. The only matter presented for the consideration of this court is whether there was any evidence to support the finding. There was none, unless it is found in a portion of the cross-examination of plaintiff which is ,as follows:

“Ques. Had you a previous understanding withMr. Warren (the defendant) that he should surrender the machine to you, other than the stipulation in the( note here? Ans. I got the understanding from Mr. Hunt that ttíey wanted the binder removed from there at once.

“Q. Mr. Hunt informed you that Mr. Warren wanted you to go and get the binder away from there; is that the word you got? A. 1 got that word — something to that effect, amounting to about that thing.”

Had such testimony been offered by plaintiff in his examination in chief, it obviously would have been incompetent; but, having been elicited on cross-examination, the only question is whether it had any tendency to show authority. It is very vague and unsatisfactory, but we cannot say that it was entirely without effect.

The judgment is therefore affirmed.  