Kruckow v. Lesser

HANSON, J. pro tem.

The defendants appeal from the judgment rendered against them upon the sole ground that it was excessive to the extent of at least $3,480. While appellants concede that there was a substantial conflict in the evidence upon the issues on which the judgment was predicated, nevertheless they contend that the trial court erred in weighing the evidence and hence we should modify the judgment or else order a new trial. In the language of appellants’ brief: “It is the contention of the appellants that while there was a conflict in the evidence, the plaintiff failed to maintain the burden of proof: Firstly, as to the alleged authorized variations in the furniture manufacture from the sketches as shown; and secondly, as to the complaints registered by the appellants from time to time as to the furniture delivered. The weight of the evidence substantially supports the contention of the defendants, and in this respect respondents have not maintained the burden of proof.

“Appellants contend that the court did not properly weigh the evidence, and that if the evidence were fairly judged, an allowance should have been made to the defendants in at least the sum of $3,480.00.”

There is nothing involved in this ease beyond the application of principles which have never been deviated from in the jurisprudence of this state since the adoption of the

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Constitution in 1879. During that entire period it has been held that the findings of fact of a trial court on conflicting evidence of a substantial character are conclusive, and that an appellate court cannot examine the record to ascertain if the findings are supported by a preponderance of the evidence.

(Bauder

v.

Tyrrel,

59 Cal. 99;

Tupman

v.

Haberkern,

208 Cal. 256 [280 P. 970] ;

Estate of Bristol,

23 Cal.2d 221 [143 P.2d 689] ; 24 Cal.L.Rev. 733.)