Hansen

This was an action founded upon an alleged verbal contract relating to the purchase, for joint account, of stock of the Justice Mining Company, and other companies. The case was tried by a jury. Plaintiff had judgment; defendant moved for a new trial, which was denied, and defendant appealed.

Three alleged errors are relied upon by appellant:

Even if the testimony had been irrelevant and immaterial, its retention is not ground for granting a new trial, unless it appear that the party was prejudiced by it. (Tully v. Harloe, 35 Cal. 302 .) But we are of opinion that the testimony was relevant for the purpose for which it was offered.

3rd. The third alleged error is, as to a question put to the witness Barney, on cross-examination. Defendant objected to the question, the objection was overruled, and defendant excepted. It does not appear from the transcript that the question was ever answered; neither does it appear but that the direct examination of the witness by the defendant laid a foundation for the question. No direct examination of the witness is in the tran-' script.

Judgment and order affirmed.

Thornton, P. J., and Sharpstein, J., concurred.