Ames v. Kinnear

Per Curiam.

This is the second appeal in this case. For the former opinion see 42 Wash. 80, 84 Pac. 629. Reference is here made to that opinion for a full statement of the nature of the controversy. By that decision the trial court was directed to overrule the demurrer to the answer, and upon the return of the cause to that court, the demurrer was overruled, and the plaintiff replied to the answer. With the issues thus formed, the cause was tried before the court without a jury, and resulted in a judgment dismissing the cause, from which the plaintiff has appealed.

The findings of the court are substantially in accordance with the facts averred in the affirmative defense, the scope of which may be seen by reference to the former opinion. The only matter urged upon this appeal is the insufficiency of the evidence to sustain the findings. We have carefully read the testimony, and we find evidence fully supporting the court’s findings. We are satisfied that, under the record, we would not be justified in disturbing the findings as made. It is true, there is conflict in the testimony upon some material points, but we shall not undertake to say from the record before us that the trial court erred in finding the greater weight of the evidence to be with the respondents. The findings do not neee» sarily reflect upon the integrity of any witness. Years had elapsed between the happening of the events and the time of the trial. Under such circumstances, it is a common experience with the best of men to remember particular facts somewhat imperfectly. The conflict in this case we believe is due to such fact, rather than to .any intentional misstatement on the part of any of the witnesses. Upon the whole evidence, we are satisfied with the findings of the trial court. The conclusions of law follow therefrom, and the judgment is affirmed.