
    A. F. SAUER v. W. S. FLYNT.
    
    May 10, 1895.
    Nos. 9405—(142).
    Findings not Justified.
    
      Held, that the evidence did not justify the findings.
    Appeal — Evidence Wrongly Excluded.
    In determining whether the evidence justified a verdict or finding, evidence offered, but excluded by the trial court, cannot be considered, even although it was erroneously excluded.
    Appeal by defendant from a judgment of the municipal court of St. Paul for $31.43, entered in pursuance of an order for judgment by Twohy, J.
    Reversed.
    
      Henry & B. L. Johns, for appellant.
    
      Thomas M. Dill, for respondent.
    
      
       Reported in 63 N. W. 252.
    
   MITCHELL, J.

This action was brought to recover a balance ■due for certain articles of clothing furnished by plaintiff to defendant. In the complaint plaintiff alleged both the reasonable value of the articles, and also an express promise to pay an agreed price; but on the trial he elected to rely wholly on an express contract for an agreed price. We have diligently examined the record to find some evidence that would enable us to sustain the findings in favor of the plaintiff, but have been unable to do so. Some competent evidence of an agreed price was offered, but was excluded or stricken out by the court. This we cannot consider, even although the court erred in excluding it. There is, perhaps, some scant evidence that there was an agreed price, but as tó what that price was there is absolutely no evidence, except that for a pair of pants for defendant’s son the price of $10 was agreed on. The amount involved is very small; the defense does not impress us as being meritorious; and the defendant secures a reversal mainly by having induced the trial court to exclude competent evidence. Under the circumstances, we will not allow him any statutory costs.

Judgment reversed, and a new trial ordered.  