The only defense in this cause is payment. And upon that issue there is conflicting evidence, so nearly balanced that we are unable to hold that there is a preponderance one way or the other. Had the question been submitted to a jury, no court, for aught that appears in this record, would think of disturbing a verdict for either party.
This case is a witness to the wisdom of C. J. Dixon’s comments in Snyder v. Wright, 13 Wis., 689, on the unfitness of submitting mere issues of fact to this court. To us, the depositions here are impersonal. We have no means of weighing the witnesses or comparing their intelligence and credibility. The evidence is a mere dead lock of contradiction.
When the testimony, in such a case, is taken before the judge of the court below, he has the advantage of seeing and hearing the witnesses. And even when, as in this case, the evidence is taken before a referee, the judge may well have opportunity, not shared by us, of appreciating the character and intelligence of the parties and their witnesses, to aid him in determining the weight of the evidence. And it is only upon apparent, satisfactory preponderance of evidence, that we feel authorized to reverse the findings of fact of a circuit judge. Murphy v. Dunning, 30 Wis., 296.
Eor this reason the judgment of the court below is affirmed.
By the Oou/rt. — Judgment affirmed.