
    No. 979.
    Fisher et al. v. Jenkins.
    From the Marion Circuit Court.
    
      R. R. Stephenson, W. R. Fertig and J. A. Roberts, for appellants.
    
      G. Shirts, J. A. Kilbourne and W. S. Christian, for appellee.
   Boss, J.

The appellee filed his complaint in the Hamilton Circuit Court against the appellant, to recover possession of personal property. The venue was changed to the Marion Circuit Court, and, upon a trial of the cause without the intervention of a jury, the court found in favor of the appellee, and rendered judgment accordingly. Two errors are assigned on this appeal, but one of which has been discussed by counsel, “that the court below erred in overruling appellant’s motion for a new trial.” The principal question urged under this assignment is as to the sufficiency of the evidence to sustain the finding.

Filed Oct. 13, 1893.

The facts disclosed by the evidence are that, in October, 1888, the appellant, "William A. Fisher, sold to the appellant, William H. Eller, a stock of groceries, in Noblesville, Indiana, and Eller, after running the business for some two or three months, traded the same to the appellee for certain real estate and foundry stock, and the balance to be paid in cash.

The disputed questions, as disclosed by the evidence, relate to the sale from Fisher to Eller, the appellants claiming it to have been a conditional sale, the title remaining in Fisher until Eller paid the purchase money, which he had not done when he made the trade with the appellee. The evidence is conflicting relative to the terms and conditions of the sale from Fisher to Eller, and the court below having decided against the appellants, this court will not disturb the finding.

When there is any evidence to sustain a finding of the court below, this court will not weigh the evidence and determine which side has a preponderance.

Judgment affirmed.

Davis, J., took no part in the decision of this case.  