
    FUHLHAGE, Appellant, v. NAGLE, Respondent.
    St. Louis Court of Appeals,
    March 15, 1904.
    APPELLATE PRACTICE: Finding of Trial Court Conclusive. The finding o£ a court, in a case tried without a jury, will not be reviewed by the appellate court when there is substantial evidence to support it.
    Appeal from St. Lonis City Circuit Court. — Ho». Bobt. M. Foster, Judge.
    Affirmed.
    
      Lon O. Hooker and P. A. Griswold for appellant.
   REYBURN, J.

This was an action by plaintiff for value of services computed at rate of two and one-half per centum upon purchase price contemplated in procuring buyer for realty designated as No. 4423, San Francisco avenue, in the city of St. Louis. It was developed that the St. Louis Colored Orphans ’ Home was willing to purchase the premises at $6,800, a price finally acceptable to defendant, the owner, but upon terms of $1,000 cash and balance in partial payments enumerated. The property, the subject of the sale, forpaed part of a larger tract burdened by a deed of trust and the proposed sale, after lengthy negotiations and protracted delays to permit adjustment of this mortgage indebtedness so as to afford relief from its lien as to the part to be sold, ultimately failed through inability of the defendant to make satisfactory terms with the mortgage creditor for release by partial payment. The trial progressed before the court sitting as a jury, and the finding and judgment'awarded and rendered for defendant.

Counsel for appellant conceded in argument that the issue presented to this court was of fact, rather than of law, and involved the verity attached by the trial court to the version of defendant, that the transaction was conditioned upon the ability of defendant with aid of appellant to handle the mortgage covering the whole realty, so as to relieve the portion to be sold and thus attain the conveyance of unencumbered title to the proposed purchaser: and it was further urged in appellant’s interest that the judgment below was manifestly unjust, against the weight of the evidence, and unsupported except by the testimony of defendant. As has been frequently announced the court below was the trier of the facts and no right to reverse its finding is reposed in this court, unless the trial court manifestly acted arbitrarily or was plainly actuated by passion or prejudice in the conclusion reached, and no such situation is exhibited here. When a cause has been tried by the court without a jury, the finding will not be reviewed when there is substantial evidence to support it. Ellis v. Railway, 89 Mo. App. 241; Corrigan v. Kansas City, 91 Mo. App. 173. This court can not determine the weight of the evidence, the finding of the trial court is conclusive upon that question. Smith v. Royse, 165 Mo. 654. The testimony herein was in conflict, but the finding is sustained by substantial evidence and the judgment is affirmed.

Bland, P. J., and Goode, J., concur.

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