
    No. 11,658.
    Eisele v. Gardner.
    Decided October 4, 1926.
    Action to recover for services rendered. Judgment for plaintiff.
    
      Affirmed.
    
    
      On Application for Supersedeas.
    
    1. Appeal and Error — Fact Findings. Fact findings of the trial court based on conflicting evidence, will not be disturbed on review.
    
      Error to the District Court of Jefferson County, Hon. S. W. Johnson, Judge.
    
    Mr. Charles E. Friend, for plaintiff in error.
    Mr. George B. Campbell, for defendant in error.
    
      En banc.
    
   Mr. Justice Adams

delivered the opinion of the court.

Gardner, plaintiff in the trial court, sued Mrs. Eisele, plaintiff in error, for services performed as a surveyor. The action was first tried in the county court of Jefferson county, and judgment rendered for plaintiff. On appeal to the district court, plaintiff won again. Defendant has brought it to this court, asking for a supersedeas and reversal.

The only assignment of error is that the judgment is contrary to, and is not sustained by the evidence. Counsel for defendant in error invokes the general rule that may he found announced one or more times in almost any book of reported cases that may be picked up — he finds six such decisions in the 78th Colorado — that findings on conflicting evidence will not be disturbed. Counsel for plaintiff in error attempts to show, on the other hand, that the evidence is not conflicting, that it sustains the latter’s position, and that therefore the rule does not apply, citing excerpts gathered here and there from the testimony of both parties.

We have looked the record over and think that counsel’s own comparison between the testimony of the parties, helps to emphasize the conflict that he says does not exist. We might refer to other parts of the evidence, showing the agreements of hire, performance, including the time spent on the work, the value of the services rendered, the schedule or itemized statement of what plaintiff claimed, which statement was admitted without objection and the amounts of which, with interest, correspond exactly with both the complaint and the judgment. There is ample testimony to sustain the judgment, and the evidence being conflicting, the rule in such cases must apply. The supersedeas will accordingly be denied and the judgment affirmed.

Mr. Justice Sheaeor and Mr. Justice Campbell not participating.  