No. 12,099.

#### Howlett *v.*Scott.

*Evidence.*— Practice.—Error in admitting testimony is not available where no objection is made to its introduction, and no motion made to strike it out.

Same. — It is not error to reject evidence which, if admitted, would not have any effect on the finding.

From the Marion Superior Court.

*H. N. Spaan,*for appellant.

*F. Rand*and *J. M. Winters,*for appellee.

Bicknell, C. C.

The complaint of the appellee in this suit was in three paragraphs.

The first paragraph alleged that the defendant sold to the plaintiff a car load of wheat, No. 3340, and never delivered it, although plaintiff had paid him $500 on account of *it;*that the wheat was to have been delivered in a reasonable time, and that the defendant, on demand, after the lapse of a reasonable time, had refused either to deliver the wheat or pay back the money.

The second paragraph alleged substantially the same facts as to another car load of wheat, No. 3610.

The third paragraph was a common count for $1,000, for *486money loaned, and money advanced, and money laid out and •expended by plaintiff for defendant.

The answer of the defendant was a general denial. There was a trial by the court in special term, with a finding for the plaintiff for $1,000. Judgment was rendered on the finding. A motion by the defendant for a new trial was overruled. The defendant appealed to the court in general term, assigning for error the overruling of his motion for a new trial.

The court in general term affirmed the judgment of the ■court in special term. The defendant appealed to this court. He assigns for error here that the court in general term erred in affirming the judgment of the court in special term.

The appellant, in his brief, discusses only the following alleged errors of the court in special term:

1. That the court erred in admitting in evidence the testimony of Charles Seaton, stating a conversation between him,self and one Spotts. But this is not an available error, because the bill of exceptions shows that no objection was made to the introduction of this testimony, and that no motion was made to strike it out. After the testimony was heard the defendant’s counsel said: “We object to the witness stating what was told him, because it was incompetent and irrelevant, being hearsay; all hearsay is objected to.”

The objection thus made was the only objection, and this the court overruled.

2. That the court erred in rejecting a protest, offered by defendant, of a $500 check on the First National Bank of Indianapolis, dated August 11th, 1883.

It appeared that this check had been taken up by another •check for $500 which had been paid. The evidence tended to show very clearly that the defendant had sold wheat to the plaintiff, and had been paid for it in three checks, two of $250 •each, and one of $500, and had never delivered the wheat, •and that the checks had been paid. The proof offered as to the protested check, afterwards taken up, could not, if admitted, have had any effect upon the finding.

*487Filed Feb. 18, 1885.

The judgment ought to be affirmed.

Per Curiam. — It is therefore ordered, on the foregoing opinion that the judgment of the court below be and the same is hereby in all things affirmed, at the costs of the appellant.