#### Robert Johns et al., for use, etc., v. J. C. McQuigg.

Sales„

In an action brought to recover for lumber sold and delivered, the contention being as to whether the defendant ora building contractor was liable therefor, this court declines, in view of the evidence, to interfere with the judgment for the defendant.

[Opinion filed June 12, 1891.]

'Appeal from the Circuit Court of Christian County; the Hon. Jacob Fouke, Judge, presiding.

Messrs. E. A. Humphreys, J. G. Drennan and F. P. Drennan, for appellants.

Messrs. Gross & Broadwell and J. B. Ricks, for appellee.

Wall, J.

This suit originated before a justice of the peace and was removed by appeal to the Circuit Court where, by agreement, the parties waived a jury and submitted the issues to the court. The finding and judgment were for the defendant and the plaintiffs bring the record here by appeal and assign error upon the action of the court in refusing certain propositions of law and in finding for defendant upon the questions of fact.

*610The plantiffs’ claim was for lumber furnished one Hart-sock, who had a contract to build a house for defendant, and the only issue of fact was whether the lumber was sold to Hart-sock or to defendant, or whether defendant bound himself to pay for it. On this point the evidence was in conflict and we can not say the conclusion of the court in respect thereto was incorrect.

There was certainly enough evidence to support the finding. The so-called propositions of law were merely propositions of fact, to the effect that upon the evidence the plaintiffs were entitled to recover.

We find no error and the judgment must be affirmed.

Judgment affirmed.