
    No. 11,108.
    Tower v. Weinrub.
    Decided November 10, 1924.
    Action for money had and received. Judgment for plaintiff.
    
      Affirmed.
    
    
      On Application for Supersedeas.
    
    1. Appeal and Ebeok—Fact Findings. Fact findings and judgment of the trial court based on conflicting evidence will not be disturbed on review.
    
      Error to the County Court of the City and County of Denver, Hon. George W. Dunn, Judge.
    
    Mr. E. A. Tower, for plaintiff in error.
    Messrs. Rothgerber & Appel, for defendant in error.
    
      Department Three.
    
   Mr. Justice Sheafor

delivered the opinion of the court.

The defendant in error, Weinrub, brought this suit against the plaintiff in error in the justice court and recovered judgment. The defendant appealed to the county court, where a trial was had to the court, resulting in a general finding in favor of plaintiff, and judgment against defendant for the sum of $165 and costs. The defendant brings the case here for review and applies for supersedeas. Both parties ask that the cause be determined upon this application. The parties are here designated as in the trial court.

We have examined the record with the utmost care and have read all of the evidence. Defendant had executed a written lease to plaintiff’s assignor. Defendant had received the sum of $500 as security for the fulfillment of the obligations of the lease, and in the lease agreed that a proportion of this sum should be deducted from the monthly rent, and in the event of cancellation of the lease before the deposit was exhausted the balance should be returned to the lessee. Only questions of fact are involved, and, as to the material facts, the testimony was that of the parties to the suit.

The evidence was conflicting and it was wholly within the province of the court to determine the credibility of the witnesses and the weight to be given to their testimony. Under the repeated decisions of this court we cannot disturb the findings and judgment of the trial court. Peppers v. Heiserman, 74 Colo. 139, 219 Pac. 781; Insurance Co. v. Fukuskima, 74 Colo. 236, 220 Pac. 994; Clover Leaf Co. v. Steamboat Springs Co., 74 Colo. 377, 221 Pac. 887; Lathrop v. John, 73 Colo. 304, 306, 215 Pac. 472.

There appearing no error in the record, the supersedeas is denied and the judgment affirmed.

Mr. Chief Justice Teller and Mr. Justice Campbell concurring.  