By the Court,
Lewis, C. J.:The motion for new trial in this case was not argued in the court below, nor has any attention been given it by appellants in this court; we are therefore not informed as to the exact points relied on, and hereafter, under like circumstances, will not consider it our duty to look into the record, but will affirm the judgment without examination. This we *83have examined, however, but find that all the assignments of error seem to be entirely without merit — the first being that the jury gave the plaintiff excessive damages, under the influence either of passion or prejudice. But the evidence fully warrants the amount awarded by the jury.
The court properly admitted exhibits A, B, and C, for they show the character of the association which was composed of the defendants, and establish their interest in the mill in which the plaintiff was employed, and thus tended, at least, to make out a prima facie case of liability against the defendants. They served a further purpose also — that of showing the authority of H. N. Day to employ the plaintiff on behalf of the defendants. The objection that they were irrelevant was therefore not well taken.
"We cannot see how the death of Thomas Day affected the plaintiff’s right to testify as to the conversation which occurred between them, provided the testimony was in other respects unobjectionable. The Practice Act of this State, section 376, provides that all persons may be witnesses in any action or proceeding except as provided in certain subsequent sections, among which is section 379, which declares: “No person shall be allowed to testify under the provisions of section three hundred and seventy-seven, when the other party to the transaction or opposite party in" the action or the party for whose immediate benefit the action or proceeding is prosecuted or defended is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased person; and nothing contained in said section shall affect the laws in relation to attestation of any instrument required to be attested.” It was under this section that the objection appears to have been made. But it is manifest this case does not come within its provisions, for none of the defendants is sued as the representative of Thomas Day.
Nor did the court err in admitting exhibits 1, 2, and 3, which were telegrams and letters from H. N. Day, instructing the plaintiff to continue his employment. These were entirely pertinent; if for no other purpose, at least for that *84of establishing the liability of Day, who is one of the defendants in the action.
The instruction asked by the defendants and refused by the court was properly refused because based upon an assumption of fact not sustained by any proof whatever. No instruction can be properly given where there is no evidence to point or sustain it.
The judgment below must be affirmed.
Garber, J., did not participate in the foregoing decision.