Urton

This is an action brought by plaintiff to recover a balance claimed to be due on a contract and for extra work. Plaintiff alleges the contract and specifications for the work in his complaint, and alleges performance of the same. Defendant admits the contract, but denies that the work was performed according to the terms of the contract and the specifications, and by cross-complaint alleges that different material was substituted for those called for in the specifications. Judgment was rendered for plaintiff, and defendant on this appeal urges three grounds for reversal.

As to the first ground raised by appellant, an examination of the transcript discloses the fact that there was conflict in the evidence as to whether admission was made or not as to such substitution, and the court upon evidence found that poorer and cheaper materials were not substituted. We cannot, of course, rule on the question of preponderance of evidence. If there is any evidence to support the findings of the trial court we are bound thereby.

As to the second ground of appeal, or really two grounds designated by appellant as his second ground, we hold that the question as to whether the court should or…