
    TONY APPLE SEWER and WATER CONSTRUCTION CO., Plaintiff-Appellant, v. PERLICK et, d. b. a. PERLICK & CO., Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24250.
    Decided January 24, 1958.
    Joseph L. Newman, for plaintiff-appellant.
    Bennett Yanowitz, for defendants-appellees.
    (HUNSICKER, PJ, STEVENS and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J.

We are called upon to review the action of the Municipal Court of Cleveland in the rendition of a judgment for the defendants, in a suit brought by the plaintiff on an account for work and labor. The petition was in the short form, under authority of §2309.32 R. C.

The action was defended on the ground that the services were rendered under a special contract, and that full payment had been made.

Trial was had to the court without the intervention of a jury; and, in the light of the record before us, we are concerned principally with the legal question of the weight of the evidence.

The Court of Appeals, in a case properly before it, not only has the power but the duty to weigh the evidence, if the question has been properly brought up on the record.

In our appraisal of the evidence, we find it in direct conflict, and such that reasonable minds might differ as to the inferences to be drawn therefrom. In such a situation this court, in an appeal on questions of law, cannot find the issues of fact otherwise than was found by the trier of the facts. The credibility to attach to the testimony of the various witnesses was solely the function of the trial judge.

If the burden of proof of establishing the terms of a contract was upon the defendants (which claim of the appellant we do not here challenge), nevertheless the evidence of the defendants was sufficient to establish their version of the contract.

The members of this court are of the unanimous opinion that the judgment should be affirmed. We find no error to justify a reversal.

Judgment affirmed.

HUNSICKER, PJ, STEVENS, J, concur.  