
    Smith v. Kruger.
    Supreme Court.— Weight of Evidence. — The Supreme Court -will not, upon the weight of the evidence of witnesses wlio- testified' Before- the lower court, interfere with the finding, unless it is elearly against the evidence and can be considered' only as the result of passion» prejudice, or palpable-misapprehension of the- facts.
    APPEAL from the Marion Circuit Court.
   Gregory, C. J.

This case- is- here- upon the- evidence.. The matter-in dispute between the-parties seems.to-be this;. Smith and Eruger-had:been partner’s in two-street contracts;, ©ne on Circle street, and the ether- on- Washington street. Eruger, according- to bis claim,, offered to Smith,.to stand all the loss that had been made, if Smith would get some one to-take the contract off" their hands.. The- Washington street contract had been completed at the time of this offer.. The-loss on the Circle street- contract was about two» thousand dollars, but there had been a profit on the other-contract of about eight hundred dollars, making* the loss, including both, of' some twelve hundred dollars. Eruger claims that he should only be charged on settlement with the-’ actual loss, while Smith claims- that Eruger’ should be charged' with a loss of two-thousand’ dollars.

We have examined the evidence, which is- in the-record.. The case was. tried by the judge of the court below, who heard all the evidence- from the-witnesses» themselves.. It is» not our- province to- interfere with his finding;, unless it is. clearly against the evidence, and can he considered only as» the result of passion,, prejudice,, or-a- palpable misapprehension. of the facts.

We are not preparedtto-say that the findiDgis even against the weight of the- evidence.. The- result arrived at was certainly an equitable one, and wo seenothingin the testimony which under any rule of law would require a different findwg- .

_ It is. claimed,, that thera had been. an. account stated be?tween tbe parties, and that it could not be disregarded by tbe court in tbe absence of fraud or mistake, but we do not so regard tbe facts. One of tbe matters disputed was this very question of accounting. Indeed, there was an issue made by the pleadings presenting it.

B. K. Elliott and C. L. Holstein, for appellant.

A. G. Porter, B. Harrison, and W. P. Fishback for appellee.

The court below committed no error in overruling tbe motion for a new trial.

Judgment affirmed, with costs.  