Vesel v. Polich Trading Co. Et Al‪.‬

Equity ? Injunction to Restrain Sale of Mortgaged Personalty ? Payment of Note ? Findings ? When Conclusive on Appeal ? Presumptions ? Burden of Proof ? Evidence ? Trial Court may not Disregard Uncontroverted Credible Evidence on Material Issue. Evidence ? Equity Cases ? Trial Court may not Disregard Uncontroverted Credible Evidence on Material Issue. 1. The rule that the district court in an equity case (injunction to prevent the sale of mortgaged personalty under the power of sale contained in the mortgage, in which the claim of plaintiff was full payment of the mortgage note) may not disregard uncontroverted credible evidence, has reference to evidence upon a material issue in the case. Equity ? Trial by Jury ? Findings not Binding on Trial Court Which may Disregard Them and Make New Findings. 2. Where, in an equity case, the trial judge calls a jury, it does so only for the purpose of enlightening its conscience, not to control its judgments; the jurys findings are not binding upon the court but it may disregard them entirely and make findings of its own. Promissory Notes ? Presumption of Nonpayment Arising from Possession by Payee ? Burden of Proof on Party Asserting Payment. 3. A promissory note in the possession of the payee bearing no endorsement showing payment is presumed to be unpaid; and where the maker pleads payment, he has the burden of proving it and must produce evidence sufficient to overcome such prima facie presumption, as well as any other evidence tending to show that the note was unpaid. Evidence ? Preponderance may be Established by Testimony of Single Witness. 4. A preponderance of the evidence may be established by the testimony of a single witness against a greater number of witnesses who testify to the contrary. Appeal in Equity Cases ? Basis of Rule That Findings on Conflicting Evidence not to be Disturbed on Appeal. 5. The main basis for the rule that the supreme court will not in an equity case disturb the findings of the trial court upon conflicting evidence, is the advantageous position occupied by the latter in hearing and seeing the witnesses testify, thus enabling it to catch suggestions imparted by the tone of the voice, a look or gesture too - Page 119 subtle for expression on the written page from which the reviewing court must arrive at its conclusion. Same ? When Findings of Trial Court in Equity Cases not to be Disturbed. 6. The supreme court will not overturn the findings of the trial court in an equity case unless there is a decided preponderance of the evidence against them, nor when the evidence, fully considered, furnishes reasonable grounds for different conclusions. Injunction to Prevent Sale of Property Under Mortgage ? Alleged Payment of Mortgage Note ? Finding of Trial Court Against Contention of Plaintiff Upheld on Appeal. 7. Held, under the above rules in a suit to enjoin the sale of personal property under a power of sale contained in the mortgage covering it, on the ground that the mortgagee in settlement of a balance of $9,000 due had accepted a cash payment of $3,000, that the trial court in setting aside a finding of the jury in favor of the contention of plaintiff and making one to the effect that no such settlement had ever been made, may not be held to have been in error, the evidence showing among other things that while plaintiff for several years, when making monthly payments on the debt, carefully had insisted on a receipt in addition to endorsement of the payment on the original and copy of the note, she had insisted on neither receipt nor endorsement of the payment of $3,000, in currency, nor on the return of the note then supposedly fully paid, etc., the evidence not decidedly preponderating against the conclusion of the court.