
    Amelia Kuder, appellant, v. William Twidale, appellee.
    . Practice in Supreme Court. Where the testimony on hehalf of the plaintiff and defendant is nearly equally balanced, and is conflicting, the finding and judgment will not he set aside.
    Appeal from Adams county. Heard below before Morris, J. '
    
      W. Q. Beall and Batty & Casto, for appellant.
    
      Capps & MoCreary, for appellee.
   Maxwell, Ci-i. J.

This action'was brought in the district court of Adams county to foreclose a mortgage upon certain lots in the town of Juniata. The defendant, in his answer to the petition, alleges that the mortgage was paid in full by certain meat sold and delivered to plaintiff by the defendant. On the trial of the cause the court found the issues in favor of the defendant, and rendered judgment accordingly. The plaintiff appeals.

The principal ground of complaint is that the judgment is against the weight of evidence. The defendant testifies that he was a butcher; that Dr. Kuder (husband of the plaintiff) kept a hotel until February, 1877; that after-wards the plaintiff kept a private boarding house; that he furnished meat to the plaintiff; that an endorsement on the note of fifty dollars was for meat furnished at the hotel; that the endorsement was made March 15th, 1877, and that he sold to the plaintiff sufficient meat to satisfy the note. In this he is corroborated by his wife. On behalf of the plaintiff, one W. G. Beall testifies that he presented the note for payment to the defendant, and that he said it had been paid by a meat bill; that he called a second time, when the defendant showed him the account book containing the charges, from which it appeared that the meat in question was charged to the husband-of the plaintiff.

George Kuder, the husband of the plaintiff, testifies that the plaintiff’s name was never on the books of the defendant; “that she never bought a cent’s worth of meat of him;” that Twidale presented this account to him three years ago, and “ I told him that I did not owe him — that the account was false.” The plaintiff also testifies that she never had any dealings with the defendant, and did not owe him a cent.

It will be seen that there is a direct conflict in the testimony. The meat seems to have been charged to Dr. Kuder, but if the testimony of the defendant and his wife is to be believed, it was in fact furnished to the plaintiff. We are led to infer from the testimony that the defendant did furnish meat to the plaintiff and' her husband. The teslimony upon that point is neither very clear nor satisfactory, but sufficient, perhaps, to justify the court in finding for ihe defendant. In any event, it is impossible for this ctiurt ,to say, upon the evidence before us, that the finding is erroneous. This being so, the judgment of the court below must be affirmed.

_ Judgment affirmed.

The other judges concur.  