14 F.2d 519 | 8th Cir. | 1926
(after stating the facts as above). The only .questions involved are questions of facts. The alleged contract or agreement sued on was oral. The evidence was oral, although a large number of letters and telegrams between Bailey and Smith was introduced.
The burden of proof was on the plaintiff to establish the alleged contract. Whether it is sufficient to establish it by a mere preponderance of the evidence, or can only be established by evidence which is full, clear, and convincing, it is unnecessary to determine in view of the conclusions reached by the chancellor as well as by us.
The findings of a chancellor, although not entitled to the conclusiveness of the verdict of a jury or of a judge, when in an action at law a jury has been waived by written stipulation of the parties, are presumptively correct, and will only be disturbed by an appellate court if clearly against the weight of the evidence or induced by an erroneous construction of the law. This is especially true, if the evidence was heard orally, with an opportunity to the chancellor to note the demeanor of the witnesses and their manner of testifying.
The learned trial judge made no special findings, but the decree necessarily evidences what findings were made. The evidence was of such a conflicting nature that, on the main issues involved, it is impossible, to reconcile it, and there is no room for a contention that the court committed any errors of law.
The findings in favor of the plaintiff as to the leases of lands set out in the Schedule A is supported by substantial evidence, which establishes a joint adventure between the par
The finding in favor of the defendants relating to the lands described in Schedule B is sustained, not only by the evidence of Smith but other witnesses. The testimony of Guy Buckner is convincing that these leases were obtained for Smith by Buckner under an agreement between them that Buckner was to receive a one-eighth interest in these leases secured by him for Smith for his services, and he received it. In our opinion there is not sufficient evidence to justify a finding that Bailey had secured any of these leases, or that there was any agreement between ^him and Smith that he was to secure them.
There is conflicting evidence as to Bailey’s services in the drilling of the well in section 33, township 8 north, range 8 east, but the preponderance of the evidence sustains the finding of the chancellor that he rendered no such services as claimed by him. It will serve no useful purpose to set out the voluminous evidence, as a careful reading of it satisfies that the findings are sustained by the great preponderance of the testimony, and therefore the decree on the cross-appeal should also be and is affirmed. Neither party to recover costs.
