¶1The error assigned by counsel for appellant is the overruling of his motion for a new trial, and the principal reason urged is that the verdict is not sustained by the evidence. After a careful reading of the evidence we are very well satisfied that this verdict cannot be allowed to stand. It is so entirely unsupported by the evidence that it would be grossly unjust to allow it to be enforced. In respect to the first note for $860, which *707the answer alleges to have been satisfied by being included in the judgment confessed in favor of Geo. B. Taylor and others, and to which the plaintiff was not a party but acted as agent for the plaintiffs thereon, the defendant himself when testifying in his own behalf does not swear that it was so satisfied. There is really no evidence showing that it was, and there is the positive testimony of several witnesses in addition to the plaintiff that it was not included in the judgment confessed.
¶2So, also, in regard to the alleged failure of consideration of the other note, even the testimony of the defendant himself fails to support the allegation and on the part of the plaintiff the evidence is overwhelming that there was no failure of consideration whatever in regard to the note.
¶3There is no testimony that can be dignified into evidence in support of the defendant’s counter-claim. The court erred in overruling the appellant’s motion to set aside the verdict and for a new trial.
¶4Appellee’s counsel makes no argument in support of the correctness of the verdict or of the ruling of the court in overruling the motion to set aside the verdict and grant a new trial, but urges that the record does not show that all the evidence is before us. The abstract, after stating the evidence given on the trial, recites that 11 here follows the usual certificate of the court that the preceding is a complete transcript of all the evidence introduced in the trial of said cause.” This we take to be true unless the appellee controverts it by a printed abstract showing a contrary state of facts, and then only do we resort to the written transcript to determine the controversy.
¶5The judgment is
¶6Reversed.