139 Wis. 403 | Wis. | 1909
An examination of the record leads to the ■conclusion that there is an abundance of evidence to support the findings of the referee on each of the three questions of fact passed upon by him, viz.: one as to the value of the •stock of merchandise, one as to the value of the book accounts, and one as to the value of the good will of the business, in the aggregate the value of the partnership property possessed by Mr. Pool and Mr. Ott at the time of the former’s death. Such being the case it seems that the trial ■court, in making the radical changes of such findings, must have proceeded with erroneous notions of the law governing ■the matter.
We must assume it was well understood, as the fact is, that findings of a referee have the same dignity, as regards being disturbed by the trial court on review, as the findings •of that court have when challenged here as being erroneous; they are not to be disturbed unless against the clear preponderance of the evidence. Hinz v. Van Dusen, 95 Wis. 503, 507, 70 N. W. 657; Johnson v. Goult, 106 Wis. 247, 250,
“There certainly is testimony supporting the finding, and we find ourselves unable to say that it is against the clear preponderance of the evidence.”
The force of the rule referred to may well be appreciated by reference to the uniform administration of it as to findings of trial courts. All reasonable doubts are to be resolved in favor of such findings, and unless wrong rules of law were evidently applied to the evidence, if there appears to be substantial credible evidence in favor of the findings, it requires a pretty strong case to warrant weighing here the conflicting evidence and determining contrary to the decision below by striking a balance between the major and minor-probabilities — the real right of the matter.
It is recognized that there are many things which cannot be spread upon the printed record, but may properly be considered by a trial court and are of great, and often controlling, significance in determining the truth as between conflicts from the mouths of witnesses. ■ As experience shows,.
“While this evidence might adequately have warranted the contrary, we cannot say that the conclusion reached by the trial court is without evidence in its support, or that such evidence is so overwhelmingly rebutted and overcome as to justify this court, on appeal, in setting that conclusion aside.” Menasha W. W. Co. v. Michelstetter, 126 Wis. 427, 429, 105 N. W. 927, 928.
Whether the findings are supported by the evidence presents “a question of the character often met with as to whether the trial court properly weighed the evidence. That is one of the most difficult questions which a superior jurisdiction has to deal with as regards overruling a decision of the trial court, where it has the opportunity to meet the witnesses face to face and has other advantages over the court which only has the benefit of a printed history of the trial. We have enlarged upon this subject too many times and too' fully to leave anything more which can be helpfully said. A clear preponderance of evidence against a trial court’s finding, when such evidence must outweigh that which is in favor of such finding and all the advantages of the trial court which we have referred to, must necessarily be a preponderance so decided as to leave but little room for reasonable doubt on the question.” Rankl v. Schmidt, 133 Wis. 103, 106, 113 N. W. 423, 424.
“Such preponderance is not effective to call for” disturb
“It is one of the unbending rules” of the reviewing jurisdiction that presumptions are to be indulged in favorable to the correctness of the findings of fact to the extent of precluding the disturbance thereof unless the preponderance of the evidence not only appears to be against such findings but decidedly and clearly so. This court does not use balanced “judicial scales for the weighing of evidence. They are weighted down on one side at the start by the probability that the findings of the court involved are right. . . . The rule in that regard has been evolved by long experience of appellate tribunals, and is deemed to be the one most likely in the end to promote the ends of justice.” Von Trott v. Von Trott, 118 Wis. 29, 34, 94 N. W. 798, 799.
As we have indicated, the quoted expressions apply as forcibly to the- situation of a court of original jurisdiction in reviewing the findings of a referee, as to an appellate court in reviewing those of a trial court. The rule is applied here so often that, in general, where the only question presented for review is, whether the findings are supported by the evidence, and the clear preponderance requisite to disturbance thereof is not significantly apparent, they are treated as verities and the matter closed by a brief statement of the fact without burdening the record with an analysis of the evidence and demonstration of the correctness of the conclusion here. The somewhat lengthy treatment, of the matter now is only indulged in because of the more than ordinary importance of the case and the seeming treatment thereof below, as. if the reference had been to take the proofs and report the
There was evidence before the referee, upon one side, of •a careful verified appraisement of the property made in a judicial proceeding and verified upon the trial by the several persons concerned therein, who testified at length, and appear, in the main, to have been entirely unprejudiced in the matter, while there was evidence upon the other side, of the usual inventory and appraisement last made of the property by deceased for the purpose of determining the state of the business with reference to the condition a year previous. The evidence, aside from the basis to start from, was not materially different on one side from the other.
The referee apparently regarded the basis made by the appraisers more reliable, in view of all the evidence, than the •one depending on the books, while the court regarded the latter the more reliable, and was influenced in that regard by the rule in F. Dohmen Co. v. Niagara F. Ins. Co. 96 Wis. 38, 71 N. W. 69, or perhaps the court held the books to be, as a matter of law, the best evidence of the property on hand at the time the deceased made the inventory and appraisal. If •so, the rule of that case was misapprehended. There the property had been largely destroyed by fire. As said in the opinion, the only evidence which existed was locked up in the books. Such being the case, it was said, in effect, that, starting with the last inventory and appraisal, the books, upon being verified to contain a history of the business as transacted from day to day, might properly be referred to by a person so as to enable him by their aid to testify as to changes in the stock subsequent to the inventory; that such evidence was proper to be considered under the familiar rule that the best evidence the nature of the case is susceptible of must be pro
There are many reasons why the referee may well have regarded the c'ase made by the defendant on the subject of value-as reliable as that made by the plaintiff. But it is not thought best to go into the subject in detail. On the whole,, it does not seem that there was any good ground for the trial court to have held that the evidence was clearly against the findings of the referee on the question of the value of the-merchandise or of the book accounts. It would rather seem that the preponderance of the evidence is in favor of such-findings, and that the learned trial court gave to the Dolmen■ Case altogether too much significance in reaching a conclusion. The referee in taking the appraisal made soon after the death of Mr. Pool as a basis to work from, instead of the last inventory and appraisal made by the deceased, did not. violate anything said in that case.
On the question of good will we are unable to agree with counsel for defendant, that there is no substantial evidence to-support the referee’s finding. True, the evidence on the part of the plaintiff from the so-called experts, was given with reference to some elements of good will, which, under the circumstances, could not go with the business, but it is not true that, there were no elements that could so go. All the property had
Just what constitutes good will, in the technical sense, in all its aspects, would be difficult to state. It is not necessary in this case to go at length into the subject. We have said enough on this for the purposes of the appeal. Doubtless the-referee took the whole situation, as we have viewed it, into account, including the fact that he reduced the value of the merchandise and book accounts to the basis of cash, as if the business were to be presently discontinued and the property turned into its money equivalent. When he came to place a value upon the good will, doubtless he took account of the amount the business was worth as an entirety, with all the
The foregoing leaves nothing more that need be said on -either appeal. The conclusion is that no good reason existed for disturbing the referee’s findings of fact in any respect.
By the Gourt. — The plaintiff will not take anything on his •appeal. On defendant’s appeal the judgment is modified to conform to the conclusions of the referee and affirmed as modified, with permission to the plaintiff, if desired, to enter ■a modified judgment in the court below accordingly. Costs •are allowed to the defendant on both appeals.