Corson, P. J.
The facts in the above entitled cause are substantially the same as those in the case of Stacy v. Smith, 9 S. D. 137, 68 N. W. 198, and the case was submitted upon the same abstract and brief. It will therefore be governed by the decision in that case. Judgment of the circuit court and order denying a new trial affirmed. Fuller, J., took no part in this decision.