Welby v. South San Francisco Land & Improvement Co.

McFARLAND, J.

Action for salary, at the rate of five hundred dollars per month, alleged to be due from defendant to plaintiff for several months of the year 1894, commencing with February of that year. Judgment was for defendant, and plaintiff appeals.

The only point made for reversal is the insufficiency of the evidence to support the findings and decision. Appellant’s cause of action rests upon the alleged fact that, on January 28, 1894, the parties verbally contracted that during that year appellant was to receive the same salary which he had been receiving during the previous year,—namely, five hundred dollars per month; but the court found that no such contract had been made, and this finding is determinative of the case against the appellant. Counsel for appellant argues, with a good deal of plausibility and force, that the preponderance of evidence is against the correctness of this finding; but he fails to show that the evidence on the issue was not fairly con

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flicting. The record shows that there was such conflicting evidence; and it cannot be rightly said that there was no substantial evidence pointing to the conclusion at which the court below arrived. Therefore, under the well-settled rule, the finding cannot be disturbed.

The judgment and order denying a new trial are affirmed.

Temple, J., and Henshaw, J., concurred.