
    [No. 5170.]
    [No. 2771 C. A.]
    Goad v. Nevitt et al.
    Appellate Practice — Findings Based on Conflicting Evidence Not Disturbed on Appeal.
    The finding of a trial court based on conflicting evidence will not be disturbed on appeal where there is sufficient competent evidence to support it.- — P. 325.
    
      
      Appeal from the District Court of Rio Grande County. ■
    
    
      Hon. Jesse G. Northcutt, Judge.
    
    Action by John F. Goad against Zula T. Nevitt and John Nevitt. From a judgment for defendants, plaintiff appeals.
    
      Affirmed.
    
    Mr. Jesse Stephenson, for appellant.
    Mr. George T. Sumner, for appellees.
   Mr. Justice Maxwell

delivered the opinion of the court:

August 14,1899, appellant, by a contract in writing, sold to appellee Zula. T. Nevitt a printing outfit and two newspapers, together with the good will and business of such papers, the consideration expressed was $600.00; $400.00 cash and a note for $200.00 signed by appellees, payable in one year.

The contract contained the following, among other stipulations:

“And in consideration of the above mentioned sum of money, this day to me in hand paid, I hereby agree to pay to said Zula. T. Nevitt one hundred dollars per month, as a forfeiture for each and every month after the first day of January, A. D. 1900, that I fail to deliver to said Zula T. Nevitt full, quiet, peaceable and undisputed possession of said property and said netos paper business.”

The complaint stated two- causes of action: First, upon the promissory note for $200.00 signed by appellees; and second, to recover the agreed price of $35.35 for certain personal property sold and delivered to the defendants at their special instance and request.

The answers of defendants-, which were separate, set forth several defenses. As a second defense both defendants pleaded the failure of the consideration for the note sued on.

Defendant Zula. T. Nevitt also pleaded certain counter-claims and a set-off. The counter-claims were disallowed by the court. It is therefore unnecessary to state them here.

The trial was to the court without a jury. The findings of the court were, inter alia:

“Now there was another item involving a claim for thirty-five dollars. I believe the testimony shows that this claim should have been $27.37 for goods sold and delivered. Those goods were received. I don’t understand there is any question about that, and, of course, should be paid for; but the defendants have an off-set which is clearly proven to my mind: first, of $2.50, which the plaintiff admits to be correct, and of $40.00, which the testimony to my mind shows the defendants clearly entitled to, making a total of $42.50 to which they are entitled. * * *
“We shall allow defendants upon their claim of '$42.50. We shall allow the plaintiff his claim of $27.37, which leaves a balance, I believe, of $15.13 in the defendant Zula T. Nevitt’s behalf here, for which judgment will be rendered. The action of the plaintiff will be denied on his promissory note, as we regard the consideration as having wholly failed.”

Judgment went accordingly, from which this appeal.

Counsel for appellant does not question the findings and judgment of the court upon the second cause of action stated in the complaint or set-off pleaded in-the answer. The evidence adduced as to appellees’ second defense is conflicting. There was sufficient competent evidence to sustain the second defense.

Under the well-settled rule of this conrt the judgment cannot be disturbed and will be affirmed.

Affirmed.

Chief Justice Steele and Mr. Justice Caswell concurring. _  