
    Holmes et al. v. Henderson.
    From the Boone Circuit Court.
    
      O. S. Hamilton and P. H. Dutch, for appellants.
   Howk, J.

In this action, the appellee, as plaintiff, sued the appellants, as defendants, in the court below. Appellee’s complaint originally consisted of three paragraphs, but before the issues were joined he dismissed his action as to the third paragraph of his complaint. In the first paragraph of his complaint, the appellee alleged, in substance, that, on the 5th day of October, 1875, he sold and delivered to the appellants a stock of boots and shoes; that, in part payment therefor, the appellants promised the appellee to pay off three promissory notes, made by the appellee on the 26th day of August, 1875, to John Weidenborer, of Hamilton, Ohio, each note calling for the sum of two hundred and sixty-nine dollars and ninety-four cents, and two of them bearing interest at eight per cent, per annum; that the said money for said notes was to have been paid at once, and the notes delivered at once, or as soon as the money could be forwarded to Hamilton, Ohio, and the notes returned and delivered to the appellee; and that the appellants failed and refused to pay the said sums of money for the appellee, and to deliver to him his said notes, although often requested so to do by the appellee, to his damage in the sum of nine hundred dollars; wherefore, etc.

In the second paragraph of his complaint, the appellee set up the same cause of action as in the first paragraph, with some slight changes in phraseology, and demanded the same relief.

To each of these paragraphs, the appellants demurred, upon the ground that it did not state facts sufficient to constitute a cause of action; which demurrers were severally overruled by the court below, and to these decisions the appellants excepted.

The appellants then answered, in four paragraphs; the first and third paragraphs being general denials, and the second and fourth paragraphs setting up affirmative matter, by way of partial defence to the action. The appellee replied by a general denial to the second and fourth paragraphs of answer. The issues joined were tried by the court, without a jury, and a finding made for the appellee in the sum of six hundred and forty-seven dollars and eighty-six cents, and judgment rendered accordingly.

The appellants’ written motion for a new trial was overruled, and they excepted to this decision.

In this court the appellants have assigned the following alleged errors of the court below:

1. In overruling their motion for a new trial; and,

2. The judgment was rendered for the appellee, when it ought to have been rendered in favor of the appellants.

The evidence on the trial is not in the record, and the judgment follows the finding. There is no apparent error in the record, and the appellants’ attorneys have failed to point out any error in any of the proceedings of the court below. Manifestly, we think, this cause has been brought to this court solely for the purpose of delay.

Therefore, the judgment is affirmed, with ten per centum damages, at the coBts of the appellants.  