
    CHRISTENSEN v. McBRIDE.
    No. 18,182;
    March 24, 1894.
    36 Pac. 398.
    Appeal.—Findings of Fact cannot tie Reviewed on conflicting evidence.
    New Trial.—Newly Discovered Evidence, Which is Merely cumulative, is no ground for a new trial.
    APPEAL from Superior Court, San Joaquin County; Ansel Smith, Judge.
    Action by one Christensen against one McBride. Judgment for plaintiff. Defendant appeals.
    Affirmed.
    James H. Budd and John E. Budd for appellant; F. T. Baldwin, R. D. Baldwin and Nicol & Orr for respondent.
   PER CURIAM.

The principal point upon which appellant relies is that the evidence does not support the findings. We have carefully examined the testimony of the witnesses, and find a sharp conflict on all material questions. Under the well-settled_ rule, therefore, the findings cannot be disturbed. Whatever transactions the parties may have had prior thereto, the court evidently believed, and so found upon sufficient evidence, that on the first day of April, 1891, after a consideration of the items of their accounts, they agreed that the defendant was owing the plaintiff $2,260, and that plaintiff was indebted to the defendant in the sum of $200. It is claimed that as the court found plaintiff was to pay the defendant for his board at the rate of four dollars per week, and as he had boarded with the defendant seventy-eight weeks, the defendant ought to have been allowed a credit of $312 instead of $200. This claim is based upon the assumption that the plaintiff boarded with the defendant continuously from October 1, 1889, to April 1, 1891; but the plaintiff testified that he had “been boarding in his family a portion of the time.” The court doubtless believed that some allowance had been made on account of plaintiff’s absence, and that the parties had agreed, as testified by the plaintiff, to allow the defendant $200. The findings with respect to the defendant’s counterclaim for use and occupation, and other affirmative matters, are as broad as the averments of the complaint, and are therefore sufficient. The affidavits filed on motion for a new trial set forth matters of evidence which are merely cumulative, and were properly disregarded by the court. Judgment and order affirmed.  