
    Birt Smith, Plaintiff, v. John L. Smith, Individually and as One of the Executors, etc., Appellant, Impleaded with Lyman C. Smith, Respondent, and Others.
   Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held, that the verdict of the jury and the findings of the trial court, to the effect that the defendant Lyman Smith substantially performed the contract in suit, and that his failure to fully perform same was attributable to Uretta Smith, deceased, are without evidence to support same; and further, that the weight of the evidence establishes that there was a settlement and adjustment of the matters in suit between the defendant Lyman Smith and the deceased, Uretta Smith, in her lifetime, whereby the contract in suit was extinguished. All concurred.  