— This ivas an action by the appellees, against the appellant, upon an account stated. Issue, trial, verdict and judgment for the plaintiffs, and motion by defendant for a new trial overruled.

The appellant claims that the evidence failed to sustain the verdict; but, upon looking into the bill of exceptions, we think there was evidence tending to sustain the material allegations of the complaint.

The motion for a new trial was based in part upon the *283ground of surprise at some of the testimony given by the plaintiffs; and affidavits in respect to this point seem to have been filed. But these affidavits were not made a part «of the record by a bill of exceptions, and we cannot notice them.

The judgment below is affirmed, with costs and five per cent, damages.