This cause was tried by the court, resulting in a finding for the defendant.

The plaintiff filed a motion for a new trial, alleging but a single cause, viz.: “because the judgment of the court is not sustained by the evidence.” .

The motion was overruled, exception, judgment, and an appeal taken to this court, and the overruling of the motion for a. new trial is assigned as error here.

The evidence is in the record. That given by the plaintiff makes out his case, and its force is but slightly, if at all, weakened by the eyidence on the part of the defence. There is no real conflict in the evidence. We think the *333judgment so clearly against the evidence, that it is our duty to reverse it on this ground.

Reversed, with costs, and remanded for a new trial.