*37 Opinion by

Plaintiff in error plaintiff in tbe court below) sued the defendant to recover the sum of $880 and the costs of this action, alleging that a check on the First National Bank of Paw-husika had been made, executed, and delivered by defendant to plaintiff and that payment of said check had been stopped by defendant. Defendant answered claiming failure of consideration. The defense is substantially that the cheek was given in payment for an automobile purchased by defendant from plaintiff, and that no delivery of said automobile was ever made, but plaintiff refused to make delivery and that therefore the consideration failed. The testimony disclosed an agreement between the parties for the purchase of an automobile, the purchase price to be the sum of $880, and the question of delivery was in issue.

There is testimony to support the defendant’s theory that he had merely examined the automobile, ridden in it, and that it was at all times in the custody of the plaintiff, that while in such custody a day or two after the negotiations for the sale were made, the plaintiff’s garage, together with said automobile, was destroyed by fire. The jury decided that the defendant’s contention was true on the issue made, and rendered a verdict for defendant.

The court’s Instructions properly Mate the law, and no exception was taken to the instructions. There is evidence to support the verdict, and under the state of the record the judgment of the lower court must be affirmed. It is so ordered.

By the Court: It is so ordered.