Frost

The sole question presented by this appeal from the judgment is whether the evidence adduced on the trial of the action was sufficient to sustain the finding of fact to the effect that plaintiff sold to the defendant, and the defendant purchased from plaintiff, certain furniture.

On examination of the record herein it appears that, although plaintiff and other witnesses produced in his behalf testified to a state of facts from which the conclusion might have been reached by the trial court that the furniture in question was consigned by plaintiff to the defendant, on the other hand, the defendant by its witnesses was equally positive that no consignment was made, but, to the contrary, that the parties to the transaction agreed upon an out-and-out sale of the furniture one to the other, and that a sale was the ultimate result of their negotiations. In such circumstances, the authorities are universal that the power of deciding the submitted issue of fact rests with the trial court and that its decision thereon cannot be disturbed by this tribunal.

The judgment is affirmed.

Conrey, P. J., and York, J., concurred.

A petition for a rehearing of this cause was denied by the…