#### Devoe & Raynolds Company, Defendant in Error, v. Patrick O’Malley, Plaintiff in Error.

Gen. No. 21,191.

(Not to be reported in full.)

Abstract of the Decision.

1. Evidence, § 475 * —uihat constitutes preponderance. The question of the preponderance of the evidence does not depend solely on the number of the witnesses testifying.

2. Sales, § 329*—what evidence may be considered in determining preponderance of evidence in action against oumer of building for materials sold. In an action to recover for paints, etc., where the defense was that defendant did not order the goods, which defendant claimed were for the benefit of his lessee, the court trying the case without a jury has the right to take into consideration, in determining the preponderance of the evidence, the fact that the goods were delivered at and used in decorating defendant’s building, and that when defendant received a bill for the goods he did not repudiate liability, although such facts, of themselves, might *550not be sufficient to warrant the inference that defendant admitted responsibility for the bill.

*549Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

Affirmed.

Opinion filed April 12, 1916.

Statement of the Case.

Action by Devoe & Raynolds Company, a corporation, plaintiff, against Patrick O’Halley, defendant, in the Municipal Court of Chicago, to recover for paints, etc., delivered at and used in decorating defendant’s building. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.

Thomas J. O’Hare, for plaintiff in error.

Elbert C. Ferguson, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV,. gnd Cumulative Quarterly, game topic Mid section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Goodwin

delivered the opinion of the court.

*5503. Saxes, § 329 * —when evidence sufficient to sustain finding that owner of building assumed responsibility for payment for goods. In an action to recover for paints, etc., delivered at and used in decorating defendant’s building, where the evidence was conflicting as to whether defendant assumed responsibility for the bill, a finding for plaintiff held supported by the evidence.