Wilson v. Cunningham , 24 Utah 167 ( 1901 )

MINER, C. J.,

after stating the facts, delivered the opinion of the court.

The appellant claims that the court erred in its findings that Mr. Beck, for a valuable consideration, sold and assigned all his interest in the 51,000 shares of the Bullion-Beck stock to Mr. Cunningham, and that the sale was not made to defraud or delay Beck’s creditors, nor upon any secret trust or agreement; that the stock should be held by Cunningham as security for the sum paid by him; and for the reason that the evidence is insufficient to justify the findings, etc.

1. An examination of Mr. Beck’s testimony shows that he had no actual promise from Mr. Cunningham that the latter would make him a loan on the stock, and accept it as a security for the $24,500 advanced upon it, allowing Beck the privilege of redeeming it. Whatever understanding Mr. Beck may have had to the effect is not clearly derived from any statement 1 or promise from Mr. Cunningham prior to the time of the transfer of the stock. ' While Mr. Beck may have been laboring under the impression‘that such was the case, such understanding or impression must have been dispelled at the time the bill of sale was executed. At this time not only Mr. Cunningham, but Mr. Howat, Mr. Bradley, and Mr. ITall, state very clearly that Mr. Cunningham refused to advance the money upon any other consideration than that Beck should make an absolute bill of sale of all his equity in the stock, without any right of redemption, or any understanding of any secret agreement to give him the right to redeem it. The bill of sale was signed by Beck, and the stock transferred. Mr. Hall, at Beck’s request, had already drawn a writing for Mr. Beck to sign for a loan upon the stock, with a right to redeem; but all of said parties agree that this proposition was absolutely and emphatically refused, and that Mr. Beck, wittf knowledge of the facts signed the bill of sale. It is true that Mr. Anderson gave testimony tending to show that Cunningham stated to him that there was an understanding between him and Beck that that transaction amounted to a loan, with the right in Beck to redeem the stoclj; but this testimony stands almost entirely-unsupported, when considered in the light of the other testimony given in the case. It will be conceded that Mr. Anderson did not intend to depart from the truth in giving his testimony. Notwithstanding the high character of the witness, it is quite possible that he may either have been mistaken as to what was said, or as to which of Mr. Cunningham’s transactions with Mr. Beck was referred to by him in giving his testimony. In any event, the great preponderance of the evidence is clearly in support of the findings made. This is more clearly emphasized when we consider the testimony of Mr. Cannon, Mr. Smith, Mr. Clawson, and Mr. McComick, who testify that Beck stated in the meeting of the board of directors at the time of his resignation that the sale of his stock to Mr. Cunningham was an absolute sale, and not made for convenience, but absolutely transferred his equity in the stock to Cunningham. In addition to this, the bill of sale, upon its face, shows an absolute transfer of Beck’s equity in the stock. The consideration paid for it, when taken in connection with the heavy liens upon it, the complications surrounding it, and the usual fluctuations of values attaching to-mining stock, and the danger ordinarily attending such transactions, must be considered reasonable, under all the circumstances disclosed. Notwithstanding the sale was absolute, the testimony shows that several weeks after it was consummated Mr. Cunningham at Mr. Beck’s request, gave him the opportunity to purchase the stock on payment to him of about $7,000 more than was advanced upon it; and Mr. Beck was satisfied- with the offer, and endeavored to obtain the money for that purpose, but failed to procure it within the several weeks allowed him. Thereafter additional time was granted by Cunningham for the same purpose, but Mr. Beck was unable to induce any person to advance the desired amount to purchase it. The amount charged by Cunningham for his risk and trouble was not unreasonable, when we consider the risk and complications attending the transaction, and the further fact that Mr. Beck states that he offered Mr. Cunningham $15,000 if he would loan $24,000 upon the stock, with a right to redeem, at the time when he first applied for the loan.

2.. Counsel for the respective parties discuss at length the rule obtaining here as to the effect of conflicting or evenly-balanced testimony. There is some conflict in the testimony in this case, but even if the evidence were more evenly balanced the case would still come under the rule, frequently announced, that, in cases where the trial court saw the 2 witnesses and heard their testimony, it is better able to judge of their truthfulness and credibility than is this court from reading the testimony. As has been frequently held, we have power under the Constitution, to review questions of fact in equity cases. Still, when such cases have been regularly tried before a court of equity, and facts found on all material issues, this court will not distrub the findings, unless they are so manifestly erroneous as to demonstrate some oversight or mistake which necessarily affects the substantial rights of the appellant. We do not wish to be understood, however, that we are concluded by the findings of the trial court. We do not mean that we have abdicated our supervision and control over facts in equity cases. But when there is a great or irreconcilable conflict in the testimony, or it is evenly balanced, and the findings of the trial court are sustained by the evidence, such findings will ordinarily be sanctioned by our affirmance; but, when the testimony preponderates on one side or the other in such a way as to convince this court that the court below has erred, its judgment will be reversed. McKay v. Farr, 15 Utah 261, 264, 49 Pac. 649; Klopenstine v. Hays, 20 Utah 56, 57 Pac. 712; Whitesides v. Green, 18 Utah 341, 351, 44 Pac. 1032, 57 Am. St. Rep. 740; Bank v. Stapp (Ky.), 30 S. W. 1000; Benne v. Schnecko (Mo.), 13 S. W. 82.

3. The purpose of this action is to set .aside and annul a written instrument signed by Mr. Beck. To do this, the entire burden is thrown upon the appellant to overcome, by clear, unequivocal, convincing testimony, the strong presumption 3 arising in favor of the written instrument signed by the party charged; and if there is a failure to overcome this presumption by testimony clear, plain, and convincing, and beyond reasonable controversy, the written instrument will be held to express the intention of the parties. The bill of sale in question speaks as an absolute conveyance, and the testimony offered to impeach it, taken in connection with the testimony of the other witnesses, is not so clear, unequivocal, and convincing, or beyond such reasonable controversy, as to convince us that it is not what it .purports to be. Ewing v. Keith, 16 Utah 312, 52 Pac. 4; Chambers v. Emery, 13 Utah 374, 45 Pac. 192; Howland v. Blake, 97 U. S. 624, 24 L. Ed. 1027.

In conclusion, we find no evidence of fraud or of a secret trust, as charged in the complaint. Many other questions are raised in the record, on which we find no reversible error.

The decree and findings of the district court are affirmed, with costs.

BASKIN and BARTCH, JJ., concur.