
    JOHN BURRILL, App’lt, v. AUGUST A. C. KRETSCHMAR, Resp’t.
    Yebdict of juby on question of fact—When not set aside.
    Appeal from a judgment entered upon the verdict of a jury in favor of defendant.
    
      Daniel B. Thompson, for app’lt; Fernando Solinger, for resp’t.
   Dykman, J.

The plaintiff is a real estate agent, and when the defendant sold his property this action was brought for the recovery of commissions upon the sale.

There was testimony on the part of the plaintiff upon the trial tending to show a right of recovery, but the testimony on the part of the defendant tended strongly in the opposite direction.

Unfortunately for the plaintiff the jury failed to award credibility to his testimony and took up the testimony of his adversary as the guide for a verdict. So it must be assumed now that the proof of the defendant furnished the truth and, therefore, the verdict was in accordance with the facts.

The determination of the case depended entirely upon questions of fact, and as their determination dictated the verdict. Those questions o.f fact were in warm dispute, and the jury was the tribunal for their determination, and there is no room or demand for the interference of an appellate tribunal.

The judgment and order denying the motion for a new trial should be affirmed, w.th costs.

Barnard, P. J., and Pratt, J., concur.  