the right to question the summons on this ground by his general appearance in asking that the judgment be set aside on account of his excusable neglect and that he be permitted to plead to the merits of the action.

It is not necessary to consider the sufficiency of the tendered answer, because, even if it presents a defense the court did not err in denying its filing. Judgment affirmed. Affirmed.

[No. 2140.]

GABOURY V. SMITH ET AL.

Appellate Practice-Findings-Presumptions.

Where under the pleading and evidence the finding of the court could have been such as would sustain the judgment, it will be presumed that it was made.

Appeal from the District Court of Eagle County.

Mr. Wм. O'BRIEN, for appellant.

Mr. JOHN A. EWING, for appellee.
GUNTER, J.

This action was upon the following instrument: "Know all men by these presents: That we, John A. Smith and B. L. Smith,

being

the owners of the west fifteen (15) feet of lot numbered 10A, of the townsite of Basalt, Colorado, and wishing to secure to Mrs. Anna M. Gaboury, the free access to her property fronting on Railroad street, we, the above named persons, grant such free access over our property. We, as owners of the above named fiften feet, agree to keep said property free from buildings; provided that it is not bargained and sold to the townsite of Basalt for a public thoroughfare nor bargained and sold to other than the town of Ba-. salt, in which case the said Mrs. Anna M. Gaboury

is to have the first option on the purchase of the same, to be kept by her free from buildings. Also we agree to move a certain log building located on said fifteen feet owned, as above stated, by us, at any time after the lease, now binding, has expired, whenever the said Mrs. Anna M. Gaboury wishes to remove buildings now on her property and erect in their stead a new brick building or other substantial and permanent business block, and provided that thirty days' notice has been given us.

(Signed)

"B. L. Smith.

"J. A. Smith."

She

The plaintiff, Mrs. Gaboury, complained therein that the terms of this instrument had been violated in the above 15 feet having been enclosed, and in the failure to remove the log building therefrom. asked an injunction restraining defendants from enclosing the lot, and for damages; and in the event injunctive relief could not be granted, for permanent damages sustained by plaintiff through the violation of the terms of the instrument.

Plaintiff alleged that the above writing was made in pursuance of an agreement of the parties entered into several weeks before its execution, and that the terms of such agreement constituted its consideration. This the defendants denied, averring that the instrument was without consideration, and denying any violation of the terms thereof. These were issues of fact and were tried to the court.

In behalf of the contentions of plaintiff, the plaintiff, her husband and Mrs. Dwyer testified.

In behalf of the contentions of defendants, defendants B. L. Smith, J. A. Smith and Fred Stiffler testified.

The court found the issues for defendants, the following appearing in the judgment:

This cause coming on to be heard before the

court upon the issues therein joined, as to whether the plaintiff was or is entitled to the use and occupancy and permanent right of way over and across the west fifteen feet of lot No. 10A, of the townsite of Basalt, Colorado, being the ground which adjoins and lies west of the ground purchased by the plaintiff from the defendants, John A. and B. L. Smith, by deed dated December 12, 1895, and upon the issues therein joined as to the right of the plaintiff as against the defendants to the use and occupancy thereof and the permanent right of way thereover, and as to damages sustained on account of removal by plaintiff of part of the log cabin referred to in the complaint, and the court having heard the evidence produced and the arguments of counsel, and being fully advised in the premises, doth find such issues in favor of the defendants; it is therefore ordered, that the complaint be dismissed,

The court under the pleadings, evidence, findings and judgment may have found either that the contract sued on was without consideration, or that the defendants, B. L. and J. A. Smith, had not violated the terms thereof, or it might have found on both issues for defendants. Such finding sustains the judgment below as there can be no legal or equitable relief on a contract void for want of consideration, or one the terms of which have not been broken. As under the pleadings, evidence and judgment such could have been the finding of the court; as such finding would sustain the judgment, the presumption is that it was made. By the finding we are concluded. The judgment of the lower court denying any relief upon the alleged contract should be affirmed.

Affirmed.

[No. 2136.]

LOWENSTEIN V. ALEXANDER.

1. Appellate Practice-Abstract of Record-Evidence.

An assignment of error based on the ruling of the court sustaining an objection to the introduction in evidence of an exhibit will not be considered unless such exhibit is contained in the abstract of record.

2. Same.

An assignment of error based on a ruling of the court sustaining an objection to a question propounded to a witness will not be considered unless the question is contained in the abstract of record.

Assignments of error based on alleged erroneous instructions will not be considered unless the instructions are contained in the abstract of record.

Appeal from the District Court of La Plata County.

Messrs. GALBREATH & ELLIS, for appellant.

Mr. N. C. MILLER, for appellee.

THOMSON, J.

Suit upon a promissory note. Plaintiff had judgment and the defendant appeals.

The defendant admitted the execution of the note, but averred payment. He also alleged counterclaims and setoffs more than sufficient to satisfy the claim. The evidence was conflicting. The uncontradicted testimony of either party would have entitled him to judgment; but as the statements of each were denied by the other, the questions of fact were settled by the verdict.

It is assigned for error that the court sustained the plaintiff's, objection to the reading in evidence of the defendant's exhibit A. The abstract contains no exhibit A; and not knowing what it was, we are unable to say whether it should have been received or not. Error is assigned as follows:

"The court erred in permitting the plaintiff to propound to witness, Seth B. Ford, for the purpose of contradicting defendant, the following question: 'State whether or not Mr. Lowenstein said, in the presence of Mr. Alexander, yourself and possibly Mr. Veitch, at the time of the taking of the inventory, that the terms upon which Mr. Alexander was buying into the store was $700 in cash and one-half of Mr. Alexander's interest in the charcoal company,' because no proper foundation was laid for such question."

On looking over the abstract we find that prior to the examination of the witness Ford the defendant was, on cross-examination, asked whether, at the time and in the presence mentioned in the question, he made the statement it contained. The foundation for the question was properly laid.

Another assignment is in the following words: "That the court erred in sustaining plaintiff's objection to the following question, propounded to witness Ford by the defendant: 'I will ask you, Mr. Ford, if, when the same question was asked you, in taking the last deposition, if your first answer to the question was not, that you understood Mr. Lowenstein to say that the consideration was $1,000, $700 of it was paid and $300 still due?'"'

No such question is found in the abstract.
Finally, it is charged that the instructions were
erroneous. The abstract contains no instructions.
Let the judgment be affirmed.

[No. 2121.]

Affirmed.

FLEMING, ADMINISTRATOR OF MELBURN'S ESTATE, V.
KELLY, MAUs & Co.

1. Estates of Decedents-Administrators-Continuing Business
of Deceased.

The general rule is that an executor or administrator is not permitted to engage in trade with the assets of the estate, nor