71 Wis. 538 | Wis. | 1888
The history cf this case appears to be this: The plaintiff purchased the premises at an administrator’s
The two attorneys ivho are alleged to have made such an agreement testified directly in opposition to each other; one asserting that such an agreement was made, and the other asserting with equal positiveness that no such agreement was ever made and that the costs of the appeal had never been reimbursed. The testimony of the other attorney at law was, substantially, that he had occasion to examine the title of said premises, and found this judgment an incumbrance thereon, and that he called upon the attorney for the plaintiff in the said justice’s suit, and upon the justice; and, on inquiry of them, “he learned from both of them that the suit had been discontinued and the judgment discharged and would be canceled of record,” and that he so informed the plaintiff in this suit. This evidence is also denied most positively by the attorney of the plaintiffs in the case before the justice. The justice has no reliable recollection of the appeal or of this interview with the other attorney at law. This court is asked to reverse the judgment mainly on the question of the credibility of these witnesses. It is claimed by the appellant’s counsel that there are at least two witnesses against one as to the main fact. This is not so. The fact testified to by the other attorney at law is an independent fact, not testified to by the attorney of the defendant in the judgment. There are two facts, one of which was the making of the agreement, and the other was what the other attorney at law learned from the attorney of the plaintiffs in the judgment. There is only one witness against one as to each fact. But the rule
It is claimed, further, by the learned counsel, that the testimony of one of the said attorneys is positive or affirmative, and that of the other is negative, and that the positive or affirmative evidence ought to prevail. This is not so in the sense that is the reason of the rule. One witness testified that such an agreement was made, and the other testified as 'positively, and with the same means of knowledge, that such an agreement was not made. This kind of testimony is not within the rule invoked by the learned counsel. Elkins v. Kenyon, 34 Wis. 93; Sobey v. Thomas, 39 Wis. 317.
It is nearly a universal rule that this court will not reverse the finding of a court or verdict of a jury on the mere credibility of witnesses or conflict of evidence. The trial court is in much better situation to apply the usual tests of credibility. It sees the witnesses, hears them testify, and observes their manner of testifying and appearance on the witness stand, and in fact knows more of them every way. We do not think the corroborating evidence on either side, received or offered, throws much weight into the scales, or at least makes any difference in this case as to the application of the usual rule. The court below decided this question of credibility for reasons of its own. If this court should decide the question either way, it would be more or less arbitrary and without reasons. We shall decline to decide the question one way or the other, but leave it with the trial court, where it more properly belongs. All we can say is that there is no such clear preponderance of the evidence against the finding of the court as would justify our interference with it.
By the Court.— The judgment of the circuit court is affirmed.