
    HENRY McDONALD v. ALMOND A. WHITE.
    
    April 22, 1904.
    Nos. 13,813—(59).
    Appeal by defendant from a judgment of the district court for Clay :ounty in favor of plaintiff for $748.25, entered pursuant to the findings and order of Baxter, J.
    Affirmed.
    
      Edwin Adams and John E. Greene, for appellant.
    
      C. A. Nye and 5*. & 0. Kipp, for respondent.
    
      
       Reported in 99 N. W. 1133.
    
   PER OURIAM.

Action to recover damages for alleged breach of covenant of warranty contained in a conveyance of real property. Plaintiff had judgment in the court below, and defendant appealed therefrom;

The only question presented is whether the evidence is sufficient to sustain the findings of the trial court. Plaintiff's right of action was conceded on the trial, but in defense it was alleged that the cause of action had, prior to the commencement of the action, been compromised and settled by an arrangement between the parties. The court found that no such settlement had ever been made, and our examination of the evidence returned in the record leads to the conclusion that the findings are sustained.

Defendant also interposed a counterclaim for taxes alleged to have been paid by him upon the property, and his right to offset the same against any recovery in favor of plaintiff was conceded. The trial court found the amount of such taxes to be $393.75, while the answer alleged that they amounted to $419.99. The evidence returned to this court is not conclusive that the court erred in this finding. Although the certificate attached to the case certifies that all the evidence is returned, it appears from an examination of the record that certain exhibits offered and received on the trial are not in fact contained in the record. This being the case, the fact must prevail over the certificate of the trial judge (Sage v. Rudnick, 67 Minn. 362, 69 N. W. 1096); and, the evidence not being all returned, the findings of the trial court must be sustained.

Judgment affirmed.  