Pratt v. Phelps

LENNON, P. J.

On January 2, 1908, the defendants and respondents herein, T. M. Phelps and W. H. Collins, executed their promissory note in the sum <:£ one thousand two hundred dollars to one H. W. Conger, On the death of Conger this action was commenced upon the note by the administrator of his estate, to recover an alleged unpaid balance of principal and interest aggregating the sum of -:ix hundred dollars. Subsequent to the distribution of Congers estate Elizabeth Conger Pratt, the sole distributee, was substituted as plaintiff in the action, and thereafter, upon a trial, a judgment was entered in favor of the defendants, from which and from an order denying a new trial plaintiff has appealed.

The defendants by their answer did not deny the execution of the note, but as a defense pleaded that the balance alleged to be ’ due and unpaid thereon had been fully paid by the assignment and delivery to the deceased during his lifetime of certain shares of mining stock, which it was alleged were received and accepted by the deceased under an agreement with the defendánts as payment ir. full of the note in suit. The plaintiff rested her case upon the proof of her possession of the note and a certified copy of a decree made in Conger’s estate, distributing the note to her. The defendants produced evidence, oral and documentary, which tended to prove that, in keeping with the agreement of nhe parties, the note had been paid in full by the defendants' assignment and delivery to Conger and the acceptance by him of thirty thousand five hundred shares of the corporate capital stock of the Encinal Mining Company. This evidence was in a measure contradicted, but not wholly overcome, by evidence in rebuttal offered and received upon behalf oi the plaintiff. The trial court made its findings of fact in keeping with the pleadings

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and proof of the defendants; and it is now contended that the evidence neither warrants nor supports the findings as made.

This contention, in the presence of a substantial conflict in the evidence, cannot be considered. It would serve no useful purpose to detail the testimony received upon the trial, and then with the same detail point out the conflict existing therein. It will suffice to say generally that the testimony adduced on behalf of the defendants, if believed by the trial court, was sufficient to overcome the presumption of nonpayment resulting from the plaintiff’s possession of the note; and therefore such testimony sufficiently supports the finding that the note was in fact paid in the manner and by the means pleaded in the answer of the defendants. Much, if not all, of the argument of counsel for the plaintiff upon this phase of the case is devoted to a discussion of the weight of the evidence. Primarily the weight of the evidence in every case is a matter for the consideration of the trial court, and ordinarily cannot be considered upon appeal. It may be that if the evidence of the defendants in the present case had been rejected as unworthy of credence by the trial court, the proof adduced on behalf of the plaintiff would have supported a finding in her favor. However that may be, it is apparent that the trial court gave full credence to the evidence adduced on behalf of the defendants. This it had the right to do; and having rested its decision of a question of fact upon evidence which is in substantial conflict the decision will not be disturbed upon appeal.