Ehler v. Counter Lumber Co. ( 1938 )

Mr. Justice Bouck

delivered the opinion of the court.

On May 20, 1931, the plaintiff in error, John Ehler, was indebted to the defendant in error, the Counter Lumber Company, for a balance of $3,750.34. That day he sigmed and delivered to the company his promissory note ■for the sum, payable on December 1, 1932. On May 29, 1931, he executed and delivered to the company a quitclaim deed conveying certain real property. In April, 1938, the company commenced an action to recover on the note. In his answer Ehler claims that the deed was given in full payment of the note. In its replication the company claims that the conveyance, though absolute in form, was intended by the parties as a mortgage to secure the note.

The district court placed upon the company the burden of proving by clear and convincing evidence that the deed is a mortgage. Evidence was introduced by both sides. Findings of fact were made in favor of the company, and judgment was entered against Ehler for the amount due on the note. This judgment is before us for review.

Tbe record presents a simple case of contradictory evidence. It was for tbe trial court, as tbe fact-finding, body, to determine tbe credibility of tbe witnesses coming before it, as well as tbe weig'ht of tbeir evidence. With tbe conclusions of that tribunal we have no right to interfere.

Judgment affirmed.

Mr. Chibe Justice Burke, Mr. Justice Young and Mr. Justice Knous concur.