The opinion
Pur Curiam.
Viewing the record in its entirety, we have discovered no exceptive assignment of error which we apprehend should be held to work a reversal of the judgment. The conclusion reached is in line with
Crouse v. Stanley, ante,
186, and other pertinent decisions.
It is complained that on the trial before the jury the court declined to instruct the jury, as requested by appellant, in response to argument of counsel for plaintiff and interveners, that payment by the contractor for materials delivered would not be presumed in the absence of evidence on the subject.
Non constat,
so far as the present record is concerned, the refusal would seem to be harmless in view of the following finding of fact, made by the referee and approved by the judge:
“22. There is no evidence from which the referee can find that the defendant board of education paid to Walter Clark, contractor, at any
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time, more than 85 per cent of that which the contractor had paid for labor performed and material delivered, the undisputed evidence being that the contractor actually paid out for labor and material more than the total amount of the contract.”
On the whole it would seem that appellant has fared reasonably well in the court below.
No error.