
    Duke to use v. North Penn Gas Company, Appellant.
    
      Practice, C. P. — Findings of fact — Review—Evidence—Appeals.
    While the appellate court will give to the findings of fact by the court below in a case tried without a jury the same effect that is given to the verdict of the jury, it will examine the record as in the case of a nonsuit, or the refusal to direct a verdict for the defendant, to determine whether there is any testimony which, if believed, will sustain the findings.
    Argued Feb. 4, 1908.
    Appeal, No. 337, Jan. T., 1907, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1906, No. 104, on case tried by the court without a jury in suit of Ií. T. Duke to use of the Norristown Trust Company v. North Penn Gas Company.
    Before Pell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on a written contract.
    The case was tried by the court without a jury under the act of April 22, 1874.
    The court in an opinion by Swartz, P. J., found in favor of the plaintiff and against the defendant for $1,789.49.
    
      
      Errors assigned were in dismissing exceptions to various findings of fact and conclusions of law.
    
      Louis M. Childs, with, him John C. Bell, for appellant.
    
      Montgomery Evans, with him N. LL. Lcwzelere, for appellee.
    March 2, 1908:
   Per Curiam,

This was an action on a written contract to furnish and lay gas pipe for the defendant at a stipulated price, and was tried by the court without a jury. It is conceded that the use plaintiff was entitled to recover the amount of money it advanced the contractor on the faith of statements contained in a letter written by the defendant’s president, which he knew was to be used for the purpose of obtaining advances. The right to recover the contract price was resisted on the ground that the work had not been properly done. We are asked to set aside the finding that there was a substantial compliance with the contract and that tests afterwards made disclosed only such defects as were to be expected in work of this kind, on the ground that there was no testimony sufficient to sustain it. While we give to the findings of fact by the court in such a case the same effect that is given to the verdict of a jury, we will, however, examine the record, as in the case of nonsuit or the refusal to direct a verdict for the defendant, to determine whether there was any testimony which, if believed, will sustain the findings. For this purpose we have examined the testimony and find that the conclusion of the court that there had been a substantial compliance with the terms of the contract is not without support.

The judgment is affirmed.  