#### A. Gutmann, Plaintiff in Error, v. A. S. Eichner, Defendant in Error.

Gen. No. 16,284.

Appeals and errors—when finding by court not disturbed. A finding by the court is given the same effect on appeal as the verdict of a jury and such finding will not be set aside as against the evidence unless clearly and manifestly so.

Error to the Municipal Court of Chicago; the Hon. Isadore H. Himes, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1910.

Affirmed.

Opinion filed February 6, 1912.

Sonnenschein, Berkson & Fishell, for plaintiff in error.

Henry L. Stern, for defendant in error; Meyer S. Emrich, of counsel.

*314Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff .in error Gutmann brought suit against A. S. Eichner, defendant in error, in the Municipal Court of Chicago. The statement of claim is for the sum of $50 repaid by the plaintiff below to the defendant as part of the purchase price of a certain automobile sold to plaintiff below, upon the condition that if the machine was not in perfect working order it should be returned to the defendant and the $50 paid to the plaintiff; that the machine was tried and found to be defective and in poor working condition, and was returned to the defendant.

The defendant pleaded a set-off for damages sustained on account of the plaintiff’s failure to take the automobile, $150, and for maintaining and caring for the automobile $50.

The cause was tried before the court without a jury, and there was a finding in favor of the defendant in the sum of $100, and judgment was entered on the finding.

The controversy is one of fact; and upon an examination of the testimony in the record we do not think that it shows by a preponderance'that the automobile was not substantially as represented at the time of the purchase. The evidence does not justify us in reaching a different conclusion from that of the trial court us to the right of the plaintiff to rescind the contract of purchase. The evidence was conflicting. The court below saw the witnesses, and had a better opportunity to judge of their truthfulness than this court has, sitting as a court of review. We are of the opinion that the finding and judgment of the court are not manifestly against the weight of the evidence, and we see no ground for reversing the judgment. It- is accordingly affirmed.

Affirmed.