Gray

Action to recover fifteen hundred and eighty dollars for goods, wares, and merchandise alleged to have been sold and delivered by plaintiffs to defendants. Verdict and judgment for defendants. Motion for new trial and order denying the same. This appeal is from the judgment and order.

The plaintiff's counsel in the bill of exceptions and statement specifies six errors of law occurring at the trial by reason of the court giving certain instructions to the jury, but in his brief argues only four, and we will examine only those urged in the brief.. The first instruction complained of reads as follows: “If you find and believe that John Kelso was not the owner of the land from which the said materials were blasted, and had no interest or estate in said land which gave to him the right to blast them out, and the only right to said materials derived to the plaintiffs was derived from John Kelso, your verdict will be for the defendants.”

It is not claimed but that the instruction is correct as an abstract proposition of law, but it is said there was no issue as to the ownership by John Kelso of the lands from which the said materials were blasted. The plaintiffs, under the issues made…