
    Slamey et al. v. The City Material Co.
    
      (Decided April 23, 1928.)
    
      Messrs. Simmons, Be Witt & Vilas, for plaintiffs in error.
    
      Messrs. Soils & Morris, for defendant in error.
   Sullivan, P. J.

This cause is a proceeding in error from the court of common pleas of Cuyahoga county. In the lower court the parties stood in the reverse order, and the issues to be determined in this court arise from the cross-petition of the City Material Company, as against Joseph R. Slamey, against whom judgment was rendered in the court below in favor of the City Material Company.

The cross-petition alleges that the material company furnished certain materials to one Joseph An-tine; that the defendant Slamey was the owner of the premises described; and further alleges that the material had been used upon the premises, and further that the cross-petitioner had filed an affidavit for mechanic’s lien within the statutory time. The defendant below admitted that he owned the premises described; that an affidavit to obtain a lien had been filed; and that he had received a copy from plaintiff, but denied the delivery of the materials and that there was any authority for the. establishment of a mechanic’s lien.

There are certain exhibits in the case which were offered by the cross-petitioner below, which purport to show the order for and the delivery of the materials for which recovery is sought, and for which a lien is claimed. It is urged that the court committed prejudicial error in admitting these exhibits as evidence in the case.

We have examined this claim of error, and we find from the record that a competent witness identified the signatures attached to the exhibits in question, and that the signatures were either those of the contractor or his brother, both of whom were on the job where the material ordered is claimed to have been delivered, and there is credible evidence in the record, although there is conflict upon this point, that the materials ordered went into the premises of the owner of the property, and that the owner, if he did not originally order the materials, ratified the act of the contractor and his brother aforesaid in accepting the material with knowledge that it was going into the building.

In our judgment, these exhibits, under the record, were competent for the purpose of showing the order and delivery to Slamey of the materials for which a recovery and lien are sought. This being so, the question is reduced in the final analysis to the issue whether the judgment is clearly and manifestly against the weight of the evidence, and, inasmuch as there is credible evidence to support the contention of the cross-petitioner, we are bound to follow the authorities which are universal in Ohio that a reviewing court cannot reverse upon the weight of the evidence except as a matter of law, and this is to be determined by whether or not there is a status in the record which shows misapprehension of the facts to such an extent that the judgment is a shock to the senses. We are bound by these authorities, and we quote some of them as follows:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony.” Breese v. State, 12 Ohio St., 146, 80 Am. Dec., 340.

“Where a variety of facts are given in evidence * * * the court should not set aside the verdict upon mere difference of opinion with the jury.” Remington v. Harrington, 8 Ohio, 507.

“When the evidence is conflicting, a verdict will not be reversed because the evidence against the verdict is strong.” Higgins v. Drucker, 22 C. C., 112, 12 C. D., 220.

“Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury. ” Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683.

It is claimed that the plaster and lath came from another source than the City Material Company, but upon this point there is a conflict in the evidence, and under the authorities above there is some evidence of a substantial nature to bear out the contention that this material came from the cross-petitioner. It is significant that the claim that the plaster came from elsewhere is weakened by the admission that, if it did, its age was such that it would be impossible to use it in any practical way.

This court may have a different view than the court below, but the authorities prohibit a reviewing court from substituting its opinion as to the facts for the judgment of the court below upon the facts, if there is credible and substantial evidence to support the judgment.

It is claimed that the petition is insufficient on the ground that there is no allegation that the owner had any contract with the party who purchased the materials. This brings us back to the record again, as it appears from the exhibits that the persons who signed the order and received the materials were authorized in the premises, and, if - they were not originally, there is credible evidence that their act was ratified by the owner subsequently by accepting the property. This status applies to the charge which is made as to the mechanic’s lien. It is true that with reference to that subject the statutes must be followed, but we think from the evidence in the case that the owner is linked up by sufficient credible, evidence with the purchasers of the materials, and, inasmuch as this situation is apparent from the record, we do not think that the case of the United States Mortgage & Trust Co. v. Wood, 19 C. C., 358, 10 C. D., 324, is at issue with our holding here. It is our judgment that the evidence submitted on this question created a situation whereby counsel in the case tried the issue as if there were no infirmity whatsoever with the petition itself. Notwithstanding Jones on Evidence (3d Ed.), page 1282, Section 820, Wills v. Russell, 100 U. S., 621, 25 L. Ed., 607, paragraph 1 of the syllabus, and other similar authorities, we think, from a survey of the entire record, there was- no prejudicial error, and that' substantial justice has been done.

Thus holding, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Vickery and Levine, JJ., concur.  