
    Voigt v. Smithers.
    Credibility op Witnesses. — When the determination of a case upon the evidence depends upon the credit to he given to witnesses, the Supreme Court will not interfere with the finding helow.
    APPEAL from the Marion Common Pleas.
   Elliott, C. J.

— Smithers sued Voigt for $263, the price of a buggy and harness sold and delivered by the former to the latter. Issues were formed and tried, resulting in a finding and judgment for the plaintiff for $239. Voigt appeals.

The only question presented here is as to the sufficiency of the evidence to sustain the finding. Both parties testified as witnesses in the case, and agreed in their statements upon the fact that, at the time of the sale and delivery of the buggy and harness, Smithers took from Voigt a claim against the United States in favor of one Barlow for $263, then in the hands of certain attorneys for collection. But Smithers testified that he received the claim, not in payment for the buggy and harness, but upon the promise of Voigt that if it was not collected in six months, he would pay the money for the property, and that, though the six months had expired long before the commencement of the suit, the claim had not been collected. Voigt, on the contrary, testified that Smithers agreed to take the claim on the United States in payment and satisfaction for the buggy and harness, and without any recourse on him in the event that it could not be collected.

F. M. Finch, for appellant.

J. W. Blake, for appellee.

These statements are in direct conflict. If the facts Avere as testified to by Smithers, the finding was clearly correct. The court below could not credit the statements of both. The finding shows that credit was given to the statement of Smithers, and we cannot review the finding.

The judgment is affirmed, with ten per cent, damages and costs.  