
    [Civ. No. 683.
    Second Appellate District.
    September 30, 1909.]
    B. F. KNOTT, Appellant, v. A. F. PATNOTT, Respondent.
    Action to Rescind Purchase of Motor Car and Recover Price— Pause Representations—Support of Bindings for Defendant.— In an action to rescind the purchase of a motor ear, and to recover the price paid for alleged false representations, where the court finds that all the material allegations of the complaint are untrue, and that the answer of the defendant is true, the findings and judgment for the defendant cannot be disturbed upon appeal, where the record discloses evidence which, if believed by the trial court to be true, amply supports its findings.
    
      Id.—Appeal—Specifications .of Insufficiency of Evidence—Province and Duty of Appellate Court.—Where the only questions of error presented in the record upon appeal relate to specifications of insufficiency of the evidence to sustain the findings, the appellate court cannot usurp the province of the trial court to determine the weight and effect of the evidence; but its duty is fully discharged when upon examination of the record it finds that the findings of the trial court have some support from competent evidence.
    APPEAL from a judgment of the Superior Court of Kings County, and from an order denying a new trial. John G. Covert, Judge.
    The facts are stated in the opinion of the court.
    H. B. McClure, and J. L. C. Irwin, for Appellant.
    M. L. Short, and John F. Pryor, for Respondent.
   ALLEN, P. J.

The plaintiff in his complaint set out the purchase by him of a motor car from defendant at an agreed price of $750; that plaintiff was induced to make such purchase and pay said sum by reason of the representations of the defendant that the car was in every respect in first-class condition, suitable for use, and had been tested by defendant and found satisfactory and in good condition; that plaintiff was unskilled in the mechanism of such machines and notified defendant that he would rely upon his representations; that these representations of defendant were false and known by him to be false when made, and the plaintiff promptly, upon discovering the defects which rendered the car unsatisfactory, notified defendant of his rescission of the contract and demanded the return of the price paid. Defendant by answer denied all of the allegations made by plaintiff in respect of. representations, and, on the contrary, averred that the machine was in good condition when sold and was worth the sum received; denied that the purchase was based upon any belief in any representations made by defendant, but, on the contrary, that plaintiff, through a skilled agent, who minutely examined the car before purchase, purchased the same upon the faith of such report and examination of the agent. The court finds against plaintiff as to all the material allegations in his complaint, and further, that, in substance, the allegations of the answer are true. Judgment went for defendant, from which judgment and an order denying a new trial plaintiff appeals.

The specifications of error all refer to the insufficiency of the evidence to support the findings. The record discloses evidence which, if accepted by the trial court, amply supports its findings. The rule that an appellate court will not usurp the functions of the trial court and upon appeal consider questions only involving the wéight and effect which should be given the testimony has been declared so often that it would seem that a time should arrive when its force and effect should be appreciated. The duty of this court in considering such specifications of error is discharged when, upon examination, it finds that the findings of the trial court have some support from competent evidence.

The judgment and order are affirmed.

Shaw, J., and Taggart, J., concurred.  