This action was to recover the value of stone and earth taken from the surface of the plaintiff’s land by the defendant for use in repairing its roadbed. The dispute at the trial was whether the materials had been taken without authority or under a standing verbal agreement between the parties, by which the defendant was allowed to take all the stone it might need at a fixed price for each year. The issue was purely one of fact and we find no error in its submission. ■

The judgment is affirmed.