#### Joseph H. Cummins, et al., v. Joseph Reigle.

1. Finding of court—when not disturbed. The finding of the court in an action at law will not be disturbed on appeal as against the weight of the evidence unless it is manifestly so.

Action of assumpsit. Appeal from the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1905.

Affirmed.

Opinion filed September 8, 1905.

Choisser, Choisser & Kane, for appellants.

M. S. Whitley and W. F. Scott, for appellee.

Mr. Justice Creighton

delivered the opinion of the court.

*369This was an action of assumpsit, in the Circuit Court of Saline County, by appellee against appellants, to recover pay for wheat sold and delivered by appellee to appellants, and to recover damages for breach of contract in refusal to accept and pay for wheat bargained and sold by appellee to appellants. Jury waived. Trial by the court byagreement. The court found the issue in favor of appellee, assessed his damages at $330, and rendered judgment on the finding.

The declaration in its various counts sets up a verbal contract for sale of 800 bushels of wheat at the price of one dollar per bushel; the delivery of a part of the wheat (the evidence shows 174 bushels were delivered), a refusal to pay for what was delivered and a refusal to accept and pay for the balance when tendered.

To this declaration appellants pleaded the general issue and certain special pleas setting up warranty as to quality; that the wheat was not of the quality warranted; and that the contract was induced by fraudulent representations as to character and quality of the wheat, and that it was not of a quality suitable for the purpose for which it was sold and bought.

In their brief and argument, counsel do not complain of any ruling of the trial court as to the admission or rejection of evidence, nor as to the holding or rejection .of propositions of law submitted. The only questions involved in this appeal are questions of fact, and upon the controlling issues there is a contrariety and conflict of evidence. In such case the presumption .is that the findings are correct, and such findings must stand on appeal, unless it appears to the Appellate Court that they are manifestly against the weight' of the evidence'; and in this connection it must be borne in-mind, as has so often been said by our Supreme Court, that the judge who tries a case in the trial court “ has vastly superior advantages for the ascertainment of truth and the detection of falsehood over this court sitting as a court of review.”

We fail to find in this record sufficient grounds to war*370rant us in setting aside the findings and judgment of the trial court.

The judgment of the Circuit Court is affirmed.

Affirmed.

There was taken with this case, a motion by appellee to tax the costs of additional abstract against appellant. This motion is denied.