Wright v. Locomobile Co. of America — 33 Cal. App. 694

Majority

p. 694

[Civ. No. 2062.

First Appellate District.

May 17, 1917.]

CHARLES WRIGHT, Respondent, v. LOCOMOBILE COMPANY OF AMERICA (a Corporation), Appellant.

Headnote

Appeal — Contract for Laying Floor in Building — Substantial Compliance—Affirmance of Judgment.—Upon an appeal from a judgment and order denying a new trial in an action upon a contract for the laying of a floor of a specified description in a building, where the main question relied upon for a reversal is as to whether or not there was a substantial compliance with the terms of the contract, and the appellant challenges the sufficiency of the evidence to support the finding of the trial court to that effect, the appellate court will not undertake to review or reverse the decision, where it is shown by the record that the judge of the

p. 695

trial court, after hearing the testimony, visited the building and examined the floor itself, and then decided that there had been a substantial compliance with the contract.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Geo. A. Sturtevant, Judge.

The facts are stated in the opinion of the court.

Elliott McAllister, and H. S. Young, for Appellant.

Jacob Samuels, for Respondent.

Action upon a contract for the laying of a floor of a specified description in a building. Plaintiff recovered judgment, from which defendant appeals, as also from an order denying its motion for a new trial.

The main question relied upon for a reversal of the judgment and order is as to whether or not there was a substantial compliance with the terms of the contract, and the appellant is challenging the sufficiency of the evidence to support the finding of the trial court to that effect. The judge of the court below, after hearing all of the evidence and going into all of the technical facts in relation to the different classes of floor, visited the building and examined the floor itself. It seems to the court, upon an examination of the entire record, that this is a case where there is a substantial conflict in the evidence, and that particularly is true where the judge of the court, after hearing the testimony of the respective contractors and experts, went and examined the premises himself, saw the floor, and then decided that there had been a substantial compliance with the terms of the contract. Under those circumstances we will not undertake to review or reverse the decision of the trial court, and for the reasons stated the judgment and order are affirmed.