McCARTY, J.,
after the foregoing statement of the case, delivered the opinion of the court.
1 Appellants’ first- alleged ground of complaint is that the court erred in giving the peremptory instruction to the jury to return a verdict in favor of the defendant James E. Jennings because the instruction assumed that there was no evidence tending to show that the property in question had been delivered to J. H. Neder and William McGillivary by direction of defendant Jennings. This assignment of error is entirely without merit, as there is no evidence whatever in the record before us that shows, or tends to show, that the property was delivered to Neder and Mc-Gillivary. The only testimony in the record on this point is that given by defendant Golding, and is as follows: “Q. After the tools were taken away, did you ever have any conversation with Neder about the balance of the stock, leaving out the partition, safe, etc.? A. Yes, sir. I got orders to turn over all the property back to Mr. Neder, with the exception of the elevator and furnaces, and I think the partition, etc. Q. Do you know where you went? A. I think we started from my-office in the Dooly Block and went down there and [278]*278turned over everything.” It will thus he observed that the instruction complained of, is in fact predicated upon the evidence, which shows that the property in question was returned to plaintiff by the officers Caffall and Golding, and not delivered to third- parties, as contended by appellant.
Appellant further contends that the verdict of the jury is contrary to the evidence. The testimony referred 2 to being the only evidence before us, this last assignment of error must be disregarded, as it is presumed there was evidence to support the verdict, in the absence of any showing to the contrary. Harris v. Barnhart, 97 Cal. 546, 32 Pac. 589; 2 Spelling, New Trial & App. Prac. 428; 3 Cyc. 275; Crompton v. Crow, 2 Utah 245.
We find no reversible error in the record. The ■judgment of the trial court must therefore be affirmed, with costs. It is so ordered.
BASKIN, C. J., and BARTCH, J., concur. Free access — add to your briefcase to read the full text and ask questions with AI