
    [No. 8457.]
    Archuleta Mercantile Co. v. Archuleta.
    
      Appeal — Judgment Against the Weight of Evidence, will be reversed. Tbe opinion is not to be taken as the finding of any fact. Any succeeding trial will be de novo.
    
    
      Error to Conejos District Court. Hon. Charles C. Holbrook, Judge.
    Mr. Charles A. Johnson, for plaintiff in error.
    Mr. Jesse Stephenson, for defendant in error.
   Mr. Justice G-arrigues

delivered the opinion of the court.

Action in replevin by plaintiff in error to recover possession of a number of cattle. A trial to the court without a jury resulted in a judgment for defendant and the case is brought here for review. The only error assigned is that the evidence does not support the judgment.

October 1, 1902, J. M. Archuleta, Jr., leased to his father, Manuel Archuleta, 85 cows, • to be handled on share for a term of five years, the lease being afterwards assigned to plaintiff company. At the end of the five year period, in 1907, a partial settlement was had between the parties, Manuel delivering to the company a number of cattle, and by agreement retaining forty-two cows and one calf, to be held for a further period of three years under the terms of the original contract; this was not only established by the oral evidence, but by a written memorandum on the back of the contract held by the company, and also by a receipt executed by the agent of the company which was delivered to and accepted by Manuel at the time of the partial settlement, in which it is recited: “Received of Jose Manuel Archuleta the

amount of 47 calves and 149 cows. Due me 42 large cows, also 1 small calf, to be carried ahead according to contract.” Manuel died in 1910 and at the termination of the three year period, plaintiff demanded possession of the stock from defendant, the widow of Manuel, which being refused, the- suit was instituted. ‘Defendant testified that she knew nothing about the transaction. The record as made, discloses no substantial defense to the action. The evidence shows that there were cattle in the possession of defendant at the time the suit was begun, belonging to plaintiff. Entertaining the view that the .judgment is manifestly against the weight of the evidence, it will be reversed and the cause remanded. — Thuringer v. Trafton, 58. Colo. 250, and authorities therein cited at page 254 (144 Pac. 866).

This opinion is not intended as a finding or determination by us that any fact is established, or cannot be established in the case, and if it is tried again, it will be ele novo.

Reversed and remanded.

Chief Justice White and Mr. Justice Scott concur.  