Weissbaum v. Eibeshutz

SEAWELL, J.

This action was brought to enforce payment on an overdue promissory note in the sum of $2,500 made by defendant to the order of plaintiff. Defendant, while admitting the execution, delivery and nonpayment of the note, by way of answer and cross-complaint, alleged in defense that no consideration had been given for the note, and that its execution and delivery had been secured through the fraud of plaintiff, the circumstances of which will more completely be set forth later in this opinion. On the issue thus formed the case proceeded to trial before the court sitting without a jury, a jury having been waived. As is usual in such fraud cases, during the course of the trial two diametrically opposed stories were narrated by the opposing parties, only one of which could be true. The trial judge believed the story of defendant, and accordingly made its findings of fact and conclusions of law in her favor. Prom the judgment entered thereon plaintiff prosecutes this appeal. The main ground of the appeal is that the findings are not supported by the evidence.

It is too well settled to require citation of authority that if the findings of the trial court are supported by any substantial evidence not inherently improbable they will not be disturbed on appeal. We are of the view that the findings in this case may, by a liberal indulgence of the rule, be held to be supported by the evidence. Much of appellant’s arguments go to the weight of the evidence, but that was a matter for the trial court and not an appellate court, and we cannot disturb its findings unless, as a matter of law, the evidence is wholly lacking in that respect. Each party was the chief witness in his or her own behalf, with but slight corroborating evidence of a conclusive character sustaining either.

The story, largely as told by respondent, was that in 1920 she was a widow, deriving her sole income from a valuable apartment house inherited from her former husband. She

[172]

testified that she possessed little or no business experience. She was acquainted with one B. J. Klarman, president of the Morning Star Mining Company, who, it appears, was closely associated with appellant in various deals. Klarman tried without success to sell some stock in the mine to respondent. In April of 1920 Klarman introduced appellant to respondent, and from that time on appellant was a very frequent visitor. He, almost immediately, tried to sell her some Morning Star stock, but she refused to buy. After ingratiating himself into respondent’s good graces, appellant tried in various ways to secure control of respondent’s property. On one occasion appellant asked respondent to place all of her valuables in his safe deposit box; on other occasions he wanted her to put her real property in his name; and on still another occasion, he importuned respondent to place her automobile in his name, all of which respondent refused to do.