Mahder v. Soule

Kuhn, J.

(after stating the facts). This, record presents one question for decision, Was the $250 Cheeseman mortgage included in and paid by the $550 mortgage given by the plaintiff to the defendant? This raises simply a question of fact. It is indeed most unfortunate that a controversy such as this, arising between an attorney of long and reputable standing at the bar and his client, finds its way to this court. In the decision of the case, however, as in all others, we must be guided simply by what the record discloses, weigh the testimony with care, and determine whether or not the plaintiff’s case has been established. This being a chancery case, the cause is heard here de novo, and it is our duty, as was said in Oliver v. Baldwin, 201 Mich. 360, to exercise independent judgment in passing upon the evidence in this case. We cannot, however, overlook, in determining this question of fact, that the circuit judge who heard the case below, who knew the witnesses, had the opportunity of seeing them on the witness stand, and heard their manner of giving their testimony, had certain advantages which we do not possess in arriving at the truth with reference to the issue involved. It would not profit any one for us to attempt in this opinion to review the conflicting testimony. It is sufficient to say that after a reading of the entire record and a careful consideration of the claims of counsel with reference to the disputed facts, we are forced to the conclusion that the material question of fact involved upon this record as presented was correctly determined by the trial judge, whose decree, therefore, must be affirmed, with costs, to the appellee.

Bird, C. J., and Ostrander, Steere, Brooke, Fellows, and Stone, JJ., concurred. Moore, J., did not sit.