Opinion
No. 10,973.
Decided November 10, 1924. Rehearing denied December 1, 1924.
Action for specific performance. Judgment for plaintiff.
Affirmed. On Application for Supersedeas.
1. APPEAL AND ERROR — Fact Findings. Findings of the trial court based upon conflicting evidence, are conclusive on the reviewing court.
Error to the District Court of Weld County, Hon. Neil F. Graham, Judge.
Messrs. MORRISSEY, MAHONEY SCOFIELD, for plaintiff in error.
Mr. WILLIAM HALL THOMPSON, Messrs. RINN ARCHIBALD, for defendant in error.
DEFENDANT in error, as assignee of an option to purchase town lots, brought suit against the plaintiff in error to enforce the specific performance of the option contract. The answer denied the execution of the option and alleged fraud in procuring its execution. The optionee conveyed the lots to the plaintiff in error by warranty deed, in satisfaction of a prior indebtedness of $1,000 and the additional consideration of $1,000 in cash, and at the same time and as a part of the same transaction took back from his grantee the option in question, giving the grantor the right to repurchase the property within a year for $2,000.
The trial was to the court. The evidence was conflicting and the court found generally for the plaintiff and against the defendant upon the issues joined. The court expressly found that "the allegations of the plaintiff's complaint have been and are sustained by the evidence, and that the allegations of fraud set forth in defendant's answer have not been sustained by the evidence."
The evidence introduced upon the trial was clearly sufficient to support the allegations of the complaint. Under the rule so frequently announced, the finding of the trial court is conclusive upon us, and we are precluded from disturbing its findings upon review. Barnett v. Jaynes, 26 Colo. 279-282, 57 P. 703.
However, we have carefully read the entire testimony, and are not only satisfied that the evidence is sufficient to sustain the findings of the court below, but that the clear preponderance of the testimony supports the plaintiff's contention. Our examination of the record convinces us that the case was fairly tried and that no errors intervened that would justify a reversal.
Supersedeas denied, judgment affirmed.
MR. JUSTICE ALLEN, sitting for MR. CHIEF JUSTICE TELLER, and MR. JUSTICE DENISON concur.