#### Henry J. Windsor v. James Thompson.

Filed March 5, 1895.

No. 6119.

^Review. Where the right of plaintiff to recover was not affirmatively established by the proofs in the district court, its j udg- ■ ment in favor of the defendant will not he disturbed in this court.

Error from the district court of Douglas county. Tried below before Keysor, J.

*Switzler & McIntosh,*for plaintiff in error.

*Tiffany & Vinsonhaler*and *J. W. Houder, contra.*

Ryan, C.

; This action was brought by the plaintiff in error for the recovery of damages caused by the failure of the firm of Miles & Thompson to return, upon his demand, certain abstracts of title furnished to and used by said firm in ascertaining the nature of plaintiff's title to certain real property, upon the faith of which afterwards a desired, loan secured by mortgage on said real property had been con*229summated. After there had been ah appeal to the district' court of Douglas county John L. Miles, one of the defendants, died, and thenceforward the suit -was prosecuted1 against James-: Thompson as.a surviving partner.’ There was a trial to the court, without the intervention of a1 jury, resulting in a judgment in favor óf Mr. Thompson.

It was not'alleged in the petition that any obligation of returning the abstracts of title after'consummation-'of the loan devolved upon the defendants, either-by express contract or otherwise.- • It was averred in the ánswer.that the abstracts in question had ■ been furnished for the purpose above indicated, and that, in consideration of the furnishing'of said-abstracts and the-giving of a mortgage oh the property in reference to which the abstracts hád been made, the-defendants Miles & Thompson ’.had loaned to' plaintiff the sum of $5,000, which loan by its tonus did not become-payable until 'June 12, 1891; that on March 2, 1891, the said defendants sold to the German Savings Bank of Davenport, Iowa, the note evidencing the obligation to pay said sum, and that the mortgage and abstracts aforesaid were as part of the security for said loan transferred, with said, note, and at the time of filing the answer were held by said bank. The demand for the-abstracts'was alleged in the petition to have been made of the same date as was that of the above averred transfer to the German Savings Bank. The-evidence showed that Mr. Thompson took no part in-making the loan to plaintiff, the entire business in that respect having been conducted by Mr. Miles, since deceásed.. In respect to plaintiff’s part in this transaction, his testimony was that lie did not remember whether, lie made a written application for a loan or not; that he did not,know, whether or not it was part of the agreement that lie. was to furnish an abstract,’for witness at that time was in"Cheyenne and Mr. -Lander, as' his agent,'was attending'to his 'business; that Mr. Lander sent for the abstracts and plaintiff sent them to him, and that Lander delivered .these' ab*230stracts to Miles & Thompson. Owing to the death of Mr. Miles we have not the advantage of his testimony on the one hand, and, on the other hand, Mr. Lander was not sworn, so that there is no evidence whatever as to the agreement under which the abstracts were intrusted to the firm of Miles & Thompson. If the proof of general custom in Omaha as to the reten ti op of abstracts by the party making the loan is taken into consideration, there was a decided preponderance in favor of the defendant. This testimony, however, might properly be rejected, since the trial was to the court, and in that event the sole question would be whether or not its finding was contrary to the weight of the remaining evidence. We cannot say that it was, and as plaintiff’s right of recovery depends upon an affirmative showing of his right to a return of the abstracts on demand, .the judgment of the district court is

Affirmed.