
    No. 14,017.
    Carter v. Gordon et al.
    Stjpbeme Cotjbt. — Weight of Evidence. — Where there is evidence to support the finding the Supreme Court will not weigh the evidence to determine whether in its opinion the trial court rendered a proper conclusion supported by what the Supreme Court might conclude was a preponderance of the evidence.
    Pleading.— Written Instrument.— Cause of Action. — Practice. — Where a plaintiff sues on a written contract, he must, if he recovers at all, recover on the cause of action sued upon.
    From the Howard Circuit Court.
    
      
      J. O’Brien and H. D. Thompson, for appellant.
    
      M. C. Bell and H. C. Purdum, for appellees.
   Olds, J.

— This is an action for damages for the breach of a written contract alleged to have been entered into between Marshall Cade and the appellee Norman Gordon, for the sale of a certain number of hogs by Cade to Gordon, and the contract was afterwards assigned by Cade to the appellant Carter. Issues were joined. One of the paragraphs of the answer of the appellee denied the execution of the contract, which was properly verified. The cause was submitted to the court for trial without the intervention of a jury, resulting in a finding and judgment in favor of the appellee. On proper request, the court found the facts specially, and stated its conclusions of law thereon. The appellant excepted to the conclusions of law, also filed a motion for a new trial, which was overruled and exceptions reserved. The court found that the defendant, the appellee, never executed the contract sued upon. The sole question presented and discussed in the case is as to the sufficiency of the evidence to sustain the finding of the court, particularly the finding that the defendant never executed the contract sued on. This court has so repeatedly decided that it will not reverse a judgment on the weight of the evidence that it is unnecessary to cite authority in support of such rule.

It is conceded by counsel for appellant, in their brief, that there was evidence to support the finding of the court, and this admission is in accordance with the facts as they appear in the record. There was evidence to support the finding, and this court will not weigh the evidence to determine whether in its opinion the trial court rendered a proper conclusion supported by what this court might conclude was a preponderance of the evidence.

It is suggested that the court should have found other facts entitling the plaintiff to recover independently of the written contract sued upon, but the plaintiff, if he recovers at all, must recover on the cause of action sued upon. Johnston v. Griest, 85 Ind. 503; Johnson Harvester Co. v. Bartley, 81 Ind. 406; Thomas v. Dale, 86 Ind. 435; Hasselman v. Carroll, 102 Ind. 153.

Filed Jan. 10, 1890.

There is no error in the record for which the judgment should be reversed.

Judgment affirmed, with costs.  