#### Smith, Respondent, vs. Peterson, Appellant.

*February 4*

February *21, 1911.*

*Appeal: Verdict, when disturbed.*

A verdict will not he disturbed on appeal for lack of evidence if there is any credible evidence to support it.

Appeal from a judgment of tbe circuit court for Polk •county: A. J. Vihje, Circuit Judge.

*Affirmed.*

*Frank B. Dorothy,*for tbe appellant.

For tbe respondent there was a brief by *Morris F. Yager,*and oral argument by *JE. J. Brabant.*

TimliN, J.

Tbe plaintiff bad verdict and judgment for $139.95 in an action on contract, and tbe appellant’s claim is *285tbat there is no evidence'to support tbe verdict as respects $100 of this amount, because tbat item represented tbe purchase of a United States cream separator by tbe defendant and there was a warranty tbat tbe separator would do good and satisfactory work, which tbe separator did not do. This machine was sold and delivered on June 24, 1904, and defendant produced evidence to show tbat tbe machine was used about two months thereafter and tbat it did not separate properly. He complained to tbe seller, who attempted to adjust it, and sent a new bowl and made other adjustments which failed of their object. After notice to the seller he kept it about two years 'without using it. On the other hand the plaintiff offered evidence tending to show that after the adjustment mentioned the machine worked properly, and the buyer made no further complaint to him until about the time this action was commenced in justice’s court in 1907 or 1908.

A witness on the part of the plaintiff testified that in different conversations during the year and a half immediately succeeding the purchase the buyer said to him that the separator ran all right. Another that he worked for the buyer, beginning three months after the purchase of the separator and continuing six months, and operated this separator and never found any fault with it, and that the buyer operated it and never made any complaint to him during that time. Another that some two years or more after the purchase he borrowed the separator from the buyer for about fifteen days, used it at this time, and that it worked all right, except that it did not skim milk clean every time; that it ran hard and was rusty, because it had been standing out on the buyer’s porch. There was considerable evidence tending to impeach the credibility of the testimony last mentioned. A motion for a new trial was denied by the circuit court. The court instructed the jury:

> “If you are satisfied from the preponderance of the evidence and to a reasonable certainty that the machine was *286warranted, that it failed to comply with such warranty, and that for that reason the defendant never accepted the machine unconditionally as his own, and so notified plaintiff within a reasonable time, then you will find for the defendant, otherwise you will find for the plaintiff.”

It is the law of this state that a verdict is not to be overthrown as unsupported by evidence if there is any credible evidence to support the verdict. *Sedlack v. State,*141 Wis, 589, 124 N. W. 510; *Estey Organ Co. v. Lehman,*132 Wis. 144, 111 N. W. 1097.

*By the Oowrt.*— Judgment affirmed.

ViNje, J., took no part.