This is an appeal from a judgment •of the circuit court of Jackson county. The action was for damages for false representations in the sale of a mill to plaintiff by the defendants. There was a verdict and judgment for defendants, and plaintiff appeals.

No portion of the evidence is saved in the bill of •exceptions. Plaintiff’s special ground of complaint is the giving of an instruction numbered 9 for the defendants.

The bill of exceptions contains the following statement: “It is agreed in this case that on the trial below there was evidence introduced upon which to found and justify the giving of each and every instruction given, and there was no evidence to sustain or justify the giving of any instruction which was refused in this case. ’ ’

Appellant has made a statement of what the evidence disclosed, but as no part of the evidence has been preserved, it is clear that we cannot accept such statement, either as a basis for the giving or the refusing of any instruction. With reference to the 9th instruction, •of which appellant complains as erroneous, we have the unqualified admission that it was “founded upon and .justified by the evidence. ’ ’ With this recital staring them in the face counsel complain that “the court told the jury in effect that though they might believe that defendants willfully and purposely cheated and defrauded plaintiff and though they were the sole beneficiaries of the fraud, yet, because they were pretending to act as •agents of a corporation which they owned, plaintiff had *508no remedy against them. Also that plaintiff had no right to rely on any statement of the defendants if he could possibly have discovered by his own examination that they were false.” The instruction reads as follows :

“The court instructs the jury that if you find from the evidence that the property in controversy belonged to a corporation known as the Hurd Milling & Grain Company, and the plaintiff knew this fact, and the plaintiff knew and understood that O. S. Hurd in the negotiations in question was acting for and on behalf of the corporation, and that in closing the trade plaintiff took and accepted a bill of sale of the property from O. S. Hurd ás an officer of the corporation, and plaintiff understood that he was buying the property of the corporation, and that 0. S. Hurd was representing the corporation in making the statements or representations that were made, then plaintiff cannot recover from the defendants.”

Obviously the instruction on its face, irrespective of what the evidence was, does not bear the interpretation placed on it by plaintiff. Plaintiff agrees that the instruction was “ founded upon and justified by the evidence.” As the plaintiff admits this instruction was justified by the evidence, this would seem to end all discussion as to its propriety. If any facts could exist which would warrant such an instruction, then they must be taken by this court as established. We cannot in the absence of the evidence know what representations “were made” within'the meaning of the instruction. Certainly we cannot presume they were fraudulent or were such that the defendants rendered themselves personally liable therefor instead of the corporation they represented.

For aught we know to the contrary they may have been of the character of mere commendation or puffing the property which would not have amounted to warranties. But it is idle to speculate in view of the sol*509-eran admissions in the record that the evidence justified the instruction.

We cgn not accept the view of counsel for appellant that this statement in the bill of exceptions amounts to no more than that the respective parties offered evidence tending to support, their respective pleadings and that there was evidence both pro and con on the subject of this 9th instruction for defendant. This plain, unambiguous stipulation in the bill will not admit of ■such a reading.

As the giving of the 9th instruction is the only error complained of and as it is admitted it-was “founded upon and justified by the evidence,” in other -words was a correct declaration of law upon the facts developed on the trial, it is plain there was no reversible error in giving it. The judgment must be and is affirmed.