#### Landis & Schick, appellants, v. George Watts, appellee.*

Filed September 16, 1908.

No. 15,281.

1. Evidence: Admissibility. If the evidence relative to a material fact is conflicting, any collateral fact or circumstance tending in a reasonable degree to establish the probability or improbability of the disputed fact is relevant and properly admitted, although it may not tend directly to prove any issue in the case.

2. -: Expebts. Hypothetical questions propounded to an expert, if so framed as to fairly and reasonably reflect the facts proved by any of the witnesses in the case, will be sufficient, provided the subject is one proper for expert testimony.

3. Appeal: Conflicting Evidence. In law cases the verdict of a jury will not be set aside if based upon conflicting evidence, unless that verdict is clearly wrong.

Appeal from the district court for Seward county: Benjamin F. Good, Judge.

*Affirmed.*

*T. L. Norval, Rmj J. Abbott*and *O. A. Robbins,*for appellants.

*M. D. Oarey, contra.*

*

 Rehearing allowed, reversed. See opinion, 84 Neb. -.

Root, C.

Action on an alleged account stated in settlement for attorney fees. Defendant prevailed, and plaintiffs appeal. Shortly after the termination of the litigation wherein plaintiffs appeared for defendant, he paid them $100, and they claim that he then agreed to pay $125 additional in settlement of their account. Defendant denies making the promise, and says that he paid plaintiffs more than their services were worth, and all that he intends to pay.

1. Error is predicated on the admission of testimony tending to prove the value of plaintiffs’ services. The court instructed the jury that said testimony should be *360considered solely for the purpose of determining whether an account was stated between the parties, and that, if such a settlement had been made, it was immaterial whether or not their services were worth the snm claimed. We are of opinion that the testimony was admissible. The testimony concerning the settlement was conflicting, and any evidence-that would reasonably tend to establish the probability or improbability of the fact in issue was properly admitted. *Shepherd v. Lincoln Traction Co.,*79 Neb. 834; *Farmers State Bank v. Yenney,*73 Neb. 338; *Blomgren v. Anderson,*48 Neb. 240; *Lincoln Vitrified-Paving & Pressed Brick Co. v. Buckner,*39 Neb. 83. If the jurors believed that the services rendered were not worth more than $50 to $100, they would be justified in considering that an agreement to pay more than twice that sum was unreasonable and improbable.

2. That the hypothetical questions do not fairly reflect the evidence. The questions are not models, but they present generally defendant’s testimony as to the scope of the services to be performed and actually rendered by plaintiffs, and we are of opinion that the answers thereto did not mislead the jury. Moreover, two at least of the Avitnesses had actual knowledge of the greater part of the Avork performed by plaintiffs for defendant, and the court did not commit reversible error in admitting the testimony. *Morrill v. Tegarden,*19 Neb. 534; Code, sec. 145.

3. That the verdict is contrary to the evidence. The evidence is conflicting, and there are many circumstances tending to corroborate plaintiffs and discredit defendant, but if the jurors believed defendant’s testimony, and rejected that of plaintiffs, they were justified in finding as they did, and we cannot lawfully disturb the verdict.

The record does not exhibit prejudicial error, and we therefore recommend that the judgment of the district court be affirmed.

Fawcett and Calkins, CC., concur.

*361By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is

Affirmed.