
    No. 22248.
    Max G. Reid v. Paul LeRoy Zook.
    (458 P.2d 746)
    Decided September 22, 1969.
    Morton McGinley, for plaintiff in error.
    Young and Young, John C. Young, for defendant in error.
    
      In Department.
    
   Opinion by

Mr. Justice Groves.

The parties were partners in the business of taking photographs of tourists on the summit of Pikes Peak. They dissolved the partnership under an oral agreement and the defendant (plaintiff in error) purchased the interest of plaintiff (defendant in error). According to the plaintiff the defendant was to pay him the additional sum of $1600 in the event defendant operated the business during the second tourist season following the dissolution. It was so operated. An action was brought to recover on this alleged promise to pay, and on trial to the court plaintiff prevailed.

Defendant denied that he had promised to pay the alleged sum. He contended that other testimony corroborated his testimony and not that of the plaintiff. It was for the judge to try the facts and determine credibility. The testimony was such that upon a finding in favor of either party the judgment would be unassailable on review. State of Colorado v. Webb, 104 Colo. 446, 92 P.2d 328.

On oral argument the defendant conceded that the statute of frauds should not be considered by us as it was not raised at trial.

Judgment affirmed.

Mr. Justice Day, Mr. Justice Kelley and Mr. Justice Lee concur.  