WILLIAM MURDOCK, Respondent, v. G. W. WARE, Appellant

WILLIAM MURDOCK, Respondent, v. G. W. WARE, Appellant. No. 2583; October 27, 1870. Appeal — Conflicting Testimony. — On a Question Whether or not the defendant assumed the contract of a third person, the finding of the trial court, if had upon conflicting testimony, is not to he disturbed. APPEAL from Tenth Judicial District, Colusa County. W. C. Belcher for respondent; C. D. Semple and W. F. Goad for appellant. [MAJORITY — TEMPLE, J.] TEMPLE, J. — Upon an examination of the statement on motion for a new trial in this case we find some evidence, both in the testimony of the plaintiff and of Shearer, which tends to prove that Ware assumed the contract made between the plaintiff and Shearer, and agreed with plaintiff to become liable according to its terms. The plaintiff testified that Ware assumed the contract' — plainly implying .that he agreed to perform the contract — which had been made with Shearer. Ware testified to a different state of facts, but upon this point the court found in favor of the plaintiff, and there being a conflict of testimony, we cannot disturb the judgment. Judgment and order affirmed. We concur: Crockett, J.; Rhodes, C. J.; Wallace, J.