
    THEO. HOFFMAN v. J. S. BAILEY.
    Exceptions from Circuit Court, First Circuit.
    Submitted on Briefs, January 16, 1899.
    Decided February 17, 1899.
    Judd, C.J., Whiting, J., and Circuit Judge Stanley, in PLACE OF FrEAR, J., ABSENT.
    The finding of facts amid decision of a trial court, jury waived, will not be disturbed unless clearly contrary to the evidence.
   OPINION OF THE COURT BY

WHITING, J.

This was an action of assumpsit heard by the Circuit Judge without a jury. His decision is as follows:

“Plaintiff claims of the defendant the sum of $22.50, $15.00 being for money paid by plaintiff for defendant to a third party for goods sold and delivered by said third party to defendant, and $7.50 being the price of goods sold and delivered by plaintiff himself to defendant. The only question in the case is one of fact, to wit, whether, as contended by the defendant, the articles thus purchased by defendant were by agreement included with other articles purchased at the same time by defendant in the contract price of $550.00 which latter sum defendant is admitted to have paid in full, or whether said first mentioned articles were by agreement ‘extras’ for which the additional sum of $22.50 was to be paid, as claimed by the plaintiff.
“There is evidence on both sides of this issue. I cannot say that it has been shown by a preponderance of evidence that the plaintiff’s claim is the correct one, and therefore find for the defendant.

George A. Davis for plaintiff.

William A. Henshall for respondent.

“Judgment accordingly.”

The plaintiff moved for judgment (notwithstanding the findings on the said trial) for the plaintiff or for a new trial upon the following grounds.

1. That the plaintiff proved the sale and delivery of the goods sued for and the payment of the money sued for upon the request of the defendant; that it was contended that that payment of $15.00 to Campbell was established upon the uncontradicted evidence of three witnesses, to wit: Godfrey Brown, Frank Goodman and Theodore Hoffman.

2. That it was submitted that the findings of fact in favor of defendant were against the law and the evidence and the weight of evidence, and that the defendant admitted the indebtedness.

We have examined the evidence and find that there is no such preponderance of evidence for the plaintiff as to clearly show that the trial court erred, or that the plaintiff was entitled to a judgment non obstante veredicto.

The case involved merely a question of fact, and the finding and decision of the Circuit Court, jury waived, are equivalent to a verdict of a jury, and will not be disturbed unless clearly contrary to the evidence. This Court has repeatedly so held.

Exceptions overruled.  