Downing v. Maag

A careful examination of all the evidence presented, together with the surrounding facts and circumstances, leads to the conclusion that there is here involved a simple fact question. There is no doubt that if the testimony presented by plaintiff were found to be true and inherently probable it would establish a contract, with adequate consideration for same. We have upheld contracts based upon similar evidence at various times. Wold v. Wold, 138 Minn. 409,165 N.W. 229; Colby v. Street, 146 Minn. 290,178 N.W. 599; Happel v. Happel, 184 Minn. 377, 238 N.W. 783. However, we are confronted with the well established rule that where the trial court's findings are challenged on appeal they are not to be set aside unless clearly and manifestly against the weight of evidence or without reasonable support therein. Sommers v. City of St. Paul, 183 Minn. 545, 237 N.W. 427; G. N. Ry. Co. v. City of Minneapolis, 142 Minn. 308, 172 N.W. 135.

Here there is reasonable support for the findings, although, had the trial court found differently, such contrary findings might be sustained under the same rule. While the testimony of plaintiff's witnesses is undisputed and reasonably definite, nevertheless there are elements in connection with the case which make the weight of such testimony a question of fact for the trial court. Part of it came from plaintiff's daughter, who might be presumed to be interested in her mother's cause. Other portions were given by Mrs. Lewis, plaintiff's friend since 1907. Decedent was an attorney and, as such, presumably familiar with the law relative to the execution of wills and the rules governing descent of property. Shortly before his death his attention was directed to his old will, and he made no attempt to revoke it. In his work in the municipal court he was in daily contact with lawyers and must have been fully cognizant of the difficulties which would confront plaintiff if he did not make the will which plaintiff contends he had agreed to make. He paid plaintiff generously for the meals she furnished him. All of these facts and circumstances appear to make the weight of the testimony given by plaintiff's witnesses a matter for determination by the triers of fact.

This rule is noted in Wold v. Wold, 138 Minn. 409, 415,165 N.W. 229, 231, where the court, in referring to the testimony of a witness who was a sister of the claimant, stated: "whether she was worthy of belief was a question for the trial court."

Again, in Holter v. Laugen, 157 Minn. 90, 93, 94,195 N.W. 639, 640, the rule is set forth as follows:

"The trial court might well have found the other way, but he found as he did. He is a man of judicial ability and of sound discretion. It is obvious that he fully appreciated his responsibility in the matter. This court is not the trier of fact. We peruse the facts to ascertain if there is evidence to support the findings of the trial court, but when we reach that point our prerogative ceases.

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"* * * The learned trial court having decided that the proof was insufficient, we are required to, and do, hold that the evidence is not manifestly and palpably in favor of the plaintiff.

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"* * * He had the benefit of seeing and hearing the witnesses. He saw the uncertainty as to whether the minds of these contracting parties ever met upon any agreement beyond the legal adoption of the plaintiff."

This case does not appear to fall within the rule requiring the triers of fact to find as true undisputed evidence inherently probable, for here, when all the evidence is considered, many facts and circumstances are found from which different minds might reasonably draw different conclusions as to the ultimate facts. The difference of opinion existing here, and existing between this court and the trial court, is illustrative of this principle. Dege v. Produce Exchange Bank,212 Minn. 44, 2 N.W.2d 423; Erickson v. Erickson Co.212 Minn. 119, 2 N.W.2d 824; Maher v. Duluth Yellow Cab. Co.172 Minn. 439, 215 N.W. 678; Weinstein v. Schwartz, 204 Minn. 189,283 N.W. 127.

MR. JUSTICE MAGNEY, not having been a member of the court when this case was argued and submitted, took no part in its consideration or decision.

UPON APPLICATION FOR REARGUMENT. On July 30, 1943, the following opinion was filed: