
    J. H. Holschen, Appellant, v. Frank Fehlig, Respondent.
    St. Louis Court of Appeals,
    December 5, 1893.
    The Evidence in this cause is considered, and is held not to indisputably establish a right on the part of the plaintiff to recover.
    
      Appeal from the St. Lotus City Circuit Court. — Hon. J. A. Harrison, Special Judge.
    Affirmed.
    
      Robert L. McLaran for appellant.
    
      C. A. Schnahe for respondent.
   Rombauer, P. J.

The plaintiff, who is a real estate agent, sued the defendant for commissions which he claimed to have earned in the sale of defendant’s house. The court tried the cause without a jury and rendered a judgment for the defendant. The plaintiff assigns for sole error in this court that “there was no substantial evidence to support the judgment.”

The burden of proof in this case was with the plaintiff; hence an assignment of error, that “there was no substantial evidence to support a judgment for the defendant,” involves a contradiction in terms. We have, however, treated the assignment as if it intended to charge that the plaintiff was entitled to recover on the undisputed facts. With that view, we have read over the evidence, and find that the facts are controverted throughout. The plaintiff gave evidence tending to show that he was the procuring cause of the sale. The defendant gave evidence tending to show that not the plaintiff, but a third person, was the cause; and, moreover, that the defendant had paid commissions to such third person upon plaintiff’s disclaimer of them. It must be evident that the finding of the trial court in that state of the record cannot be disturbed, and that no question of law is presented for our consideration on this appeal.

All the judges concurring,

the judgment is affirmed.  