McAuliffe v. Foglesong

BISHOP, J. pro tem.* It is so futile for an appellant to argue, as the defendant does, that the judgment against her is wrong because it is contrary to the testimony that she gave, entirely overlooking the abundant, positive, contrary evidence of the plaintiff. It has been so often said, as we find in McKinley v. Buchanan, 176 Cal.App.2d 608, 611 [1 Cal.Rptr. 573, 575] : “ ‘ “The appellate courts are required to reiterate from day to day, and with unremitting monotony . . . that the appellate court cannot weigh the evidence to determine where the preponderance lies; that its duty begins and ends with a determination of whether there is any substantial evidence, contradicted or uncontradicted, which supports the findings of fact; and that when two or more inferences reasonably can be deduced from the evidence the reviewing court cannot substitute its own inferences for those of the trial court.” In the present case, therefore, it is not proper to attempt a retrial or revaluation of the evidence. The record discloses abundant conflict, but it also reveals substantial evidence in support of the verdict. ’

“ The test is not whether there is a substantial conflict in evidence but whether there is substantial evidence in favor of the respondent.”

Plaintiff’s action, commenced in June of 1958, was based upon a written contract, bearing date of November 29, 1952, in which the defendant agreed to buy plaintiff’s White Mine for $50,000, payable: $500 down; $4,500 in 30 days; and the balance during the month of January 1953. Only the initial payment of $500 was paid. Judgment for $49,500, [527]together with interest on the $4,500 from its due date and the $45,000 from January 31, 1953, a total of $67,294.24, was awarded the plaintiff, and the defendant appealed.

The defendant admits that she signed the contract to pay defendant $50,000 but insists that the purpose of the writing was to accommodate the plaintiff and not to evidence an agreement. According to her story, the plaintiff had a prospect for the mine for $100,000, but that his son-in-law was trying to get the mine from him (the plaintiff), and so he wanted the protection that a purported contract with the defendant would give him. It was agreed between them that she was not buying the mine, just saving it for the plaintiff.

The $500 was admittedly paid to the plaintiff, but, again according to defendant’s version, not as a down payment under the contract, but as a loan to the plaintiff, who had a sick son, on charity, who could be cured if his father could give him $500. The transaction took place in the presence of a witness, who died a year before the trial.