
    No. 2462.
    Scoggins v. Smith.
    April Term, 1889.
    
      July 9, 1889.
    
      W. A. Sanders, for appellants. A. Gr. Brice, contra.
   Opinion by

Mr. Justice McIver,

This was an action in which, as stated in the opinion of this court, “the claim of the plaintiffs is presented in their complaint in a double aspect: 1st, for the specific performance of a contract in reference to real estate; and, second, in the event of a failure to establish such contract, then for the value of the services which they claim to have rendered their father, the testator.” And the opinion immediately continues: “No question was raised 'as to the propriety of joining these two causes of action in the same complaint, and perhaps none could have been raised, as they both arose out of contract.”

Plaintiffs claimed'that their father, the testator, agreed that if they would convey to him a tract of land, and nurse him and his wife for life, he would devise and bequeath his entire estate to them ; that they performed their part of this agreement, but testator had failed to carry out the contract on his part. The testimony was taken by a referee, upon which the Circuit Judge (Hudson) dismissed the complaint. Upon appeal by plaintiffs, raising only questions of fact, the Circuit decree was affirmed, this court saying : “The questions raised by this appeal being solely questions of fact, under the well settled rule, it is incumbent on the appellants to show that the conclusions reached by the Circuit Judge are without any testimony to support them, or are contrary to the manifest weight of the testimony. This the appellants have wholly failed to do; and, on the contrary, the conclusions reached below are, in our judgment, well sustained by the evidence. * * * It is quite certain that the testimony is conflicting as to the material facts upon which appellants’ case rests; and when that is the case, this court rarely, if ever, feels warranted in disturbing the conclusions reached by the Circuit Court.”  