130 P. 1112 | Ariz. | 1913
This is an action for the foreclosure of a materialman’s lien. The plaintiff had judgment in the court below with a foreclosure of the lien. The appeal is from the judgment and the order denying defendant’s motion for a new trial.
The complaint, which was sworn to, so far as it is material to be considered on this appeal, alleges that defendant made a contract with one Clark Kendall for the construction and improvement of certain trade fixtures in a storeroom occupied by defendant in the city of Globe; that in pursuance of said contract, and at the instance and request of said Kendall, the plaintiff furnished lumber and material which was used in the construction of said improvements; and alleges the reasonable value thereof. The defendant in his answer, under oath, admits the furnishing and use of the material under the eon-
It is submitted that the judgment is not supported by the evidence, but as is very frequently the case, appellant rests his assignment largely on testimony given in support of his theory, ignoring the fact that such testimony was in conflict with that produced by the plaintiff, or, if not in conflict, might have been discredited by the court. It would serve no useful purpose to analyze the evidence in detail; suffice it to say that, aside from the admission of defendant in his answer as to the making of the alleged contract, there is evidence in the record fairly tending to support the allegations that such contract was made, and also that the reasonable value of the material was the amount as found by the court.
The rule has frequently been laid down upon the question of a review of the facts. The judgment of the court below will not be disturbed if there is any substantial evidence fairly tending to support it. Jordan v. Duke, 4 Ariz. 278, 36 Pac. 896; Webber v. Kastner, 5 Ariz. 324, 53 Pac. 207; Jordan v. Schuerman, 6 Ariz. 79, 53 Pac. 579; Henry v. Mayer, 6 Ariz. 103, 53 Pac. 590; Barter v. Pima, 2 Ariz. 88, 11 Pac. 62; Willard v. Carrigan, 8 Ariz. 70, 68 Pac. 538.
Upon the question as to what, if any, weight was to be given to the testimony of defendant, in his explanation of the falsity of a deliberate admission made in his sworn answer, it was peculiarly within the province of the lower court to de
For the reasons given, the judgment of the lower court is affirmed.
CUNNINGHAM and ROSS, JJ., concur.