Summary
In Hansen v. Johnson, 90 Mont. 597, 4 P.2d 1088, 1090, this court said: "Owing to its nature, fraud is provable by circumstantial evidence, and the direct and positive testimony of a party charged with fraud, and `who would naturally swear to the bona fides of the transaction under investigation' in order to perfect his fraudulent design, may be overcome by the aggregate of trivial, remote, and disconnected facts and circumstances disclosing fraud, as `a broken twig or a misplaced pebble' discloses the spoor of his game to the woodsman."
Summary of this case from Walker v. MinkOpinion
No. 6,811.
Submitted October 13, 1931.
Decided November 13, 1931. Rehearing denied December 2, 1931.
Chattel Mortgages — Defective Execution — Filing — Notice — Principal and Agent — Attachment With Knowledge of Prior Mortgage — Attorney and Client — Fraud — Evidence — Equity — Appeal — Sufficiency of Evidence — Findings — When Conclusive. Chattel Mortgages — Valid Between Parties Though Defective and not Entitled to Record. 1. While under section 8276, Revised Codes 1921, a defective chattel mortgage is not entitled to record, it is valid as between the parties. Same — Duration of Lien — Good as Against Whom — Subsequent Encumbrancer "in Good Faith." 2. To constitute one a subsequent encumbrancer "in good faith," within the meaning of section 8279, Revised Codes 1921, declaring as against whom and for what length of time a chattel mortgage is good and valid, he must have acquired a lien upon the property without knowledge, actual or constructive, of the existence of a prior mortgage. Same — Filing of Defective Mortgage Does not Impart Constructive Notice. 3. A chattel mortgage not entitled to filing, though physically filed, imparts constructive notice to no one. Principal and Agent — Acts of Agent — Notice Imputed to Principal — Rule as to Attorney and Client. 4. The rule that a principal is presumed to have notice of that of which the agent has notice and ought in good faith and the exercise of ordinary care to communicate to his principal, as applied to client (principal) and attorney (agent) does not pertain to facts acquired prior to the employment of the attorney or in the transaction of business for another client. Fraud — Provable by Circumstantial Evidence — Proper Inferences. 5. Fraud is provable by circumstantial evidence, and the direct and positive testimony of a party charged with fraud as to the bona fides of the transaction may be overcome by the aggregate of trivial, remote and disconnected facts and circumstances disclosing fraud. Same — Presumptions of Innocence of Wrongdoing. 6. In an action involving fraud the presumptions declared by subdivisions 1 and 19, section 10606, Revised Codes 1921, that a person is innocent of wrong, and that private transactions have been fair and regular, prevail until overcome by evidence satisfactory to the court. Equity — Appeal — Findings — Evidence — Superior Position of Trial Court in Passing upon Credibility of Witnesses — When Findings Conclusive. 7. In weighing testimony, the trial court in an equity case has the advantage, not possessed by the supreme court on appeal, of observing the conduct and appearance of the witnesses; the witness may convey something by the tone of his voice, by a look or gesture, too subtle for expression on the written page of the record; hence if the evidence as shown in the record does not clearly preponderate against the court's findings they must be accepted on appeal as conclusive. Evidence — Witnesses — False Testimony Perceptible to Trier of Facts from Manner of Witness in Testifying. 8. For a witness to speak the truth is natural and instinctive, while the utterance of a falsehood does such violence to one's moral nature as to be almost always more or less perceptible in the voice, the countenance, the language and the whole manner of the witness.
2. Validity of unfiled chattel mortgage as against persons with actual notice thereof, see note in 68 A.L.R. 274. Chattel Mortgages — Fraud in Procuring Attachment With Knowledge of Prior Mortgage — Findings in Favor of Defendant Held Sustained by Evidence. 9. In an action to foreclose a chattel mortgage, which, though defective and not entitled to filing but good as between the parties thereto, and to have a later attachment lien thereon (asserted by defendants to be superior to any claim of plaintiffs but alleged by the latter to have been procured through fraudulent practices) declared inferior, held that the findings of the court in favor of the defendants, based on nonconflicting testimony, opposed by mere inferences contended for by plaintiffs as showing wrongdoing, must be accepted as conclusive on appeal.
Appeal from District Court, Powell County; George B. Winston, Judge.
Mr. W.E. Keeley, for Appellants, submitted a brief and argued the cause orally.
The contention of the respondent Wine is twofold. First, he claims that because the "abortive" chattel mortgage was not constructive notice, the appellants are remediless because of the statute requiring a filing.
The early decisions of our supreme court are not applicable, because made under a much more stringent statute and a statute identical with that of California, holding that unfiled chattel mortgages were "void" as to attaching creditors. Our law was entirely changed in 1913, and is section 8279, Revised Codes 1921, which merely provides that a mortgage properly filed is good and valid as against creditors, subsequent purchasers and encumbrancers, and that a mortgage properly filed ceases to be valid as against creditors, subsequent purchasers or encumbrancers "in good faith" after a certain period. It will be noted, that in the present law there is no distinction made as between creditors and subsequent purchasers or encumbrancers. Under the old law, there was a provision that an unfiled chattel mortgage was void as to subsequent purchasers and encumbrancers in good faith and for value, and it was held that because the statute omitted to so say, the good faith and value provision did not apply as to creditors. This is no longer true, and it has now been held in many cases, among which are the following, that the statute is applicable only to creditors in good faith and without actual notice. ( Fergus County v. First State Bank, 67 Mont. 1, 213 P. 1114; Crone v. Occident Elevator Co., 70 Mont. 211, 224 P. 659; Moore v. Crittenden, 62 Mont. 309, 204 P. 1035; Chester State Bank v. Minneapolis Threshing Mach. Co., 58 Mont. 44, 190 P. 136.) It has also been held that persons guilty of fraud or collusion are outside of the protection of the statute. ( First Nat. Bank v. Coit, 79 Mont. 468, 257 P. 469.) All states having statutes identical or similar to ours, hold that a creditor with actual notice, or with such notice as would put him upon his guard, cannot take advantage of the statute. The only states which still hew to the proposition that actual notice is immaterial to a creditor, are those states having a statute identical or similar to the Montana statute, existing prior to 1913.
Secondly, the respondent Wine claims that even if appellants' foregoing statement of the law is correct, nevertheless he had no actual notice or knowledge of appellants' mortgage, and none that could be attributed to him. He apparently realizes that, under our statute, the only way he can prevail is by showing a lack of knowledge of the "abortive" mortgage at the time he attached, and his own good faith. We have no means of rebutting his testimony by direct evidence, but the inferences, aside from any proposition of agency, are all in our favor, and we are not shut out of such inferences by the testimony given by Wine. (See Roman v. Albert, 81 Mont. 393, 264 P. 115; State ex rel. Hansen v. District Court, 72 Mont. 245, 233 P. 126; Warren v. Senecal, 71 Mont. 210, 228 P. 71; Security State Bank v. McIntyre, 71 Mont. 186, 228 P. 618; Sanger v. Hungerford, 65 Mont. 236, 211 P. 349; Casey v. Northern P. R. Co., 60 Mont. 56, 298 P. 141; McIntyre v. Northern P. R. Co., 56 Mont. 43, 180 P. 971; Daniels v. Granite Bi-Metallic Co., 56 Mont. 284, 184 P. 836; Rood v. Murray, 50 Mont. 240, 146 P. 541; Reid v. Hennessy Mercantile Co., 45 Mont. 383, 123 P. 397; Merchants' Nat. Bank v. Greenhood, 16 Mont. 395, 41 P. 250, 851; Mattock v. Goughnour, 11 Mont. 265, 28 P. 301; Landsman v. Thompson, 9 Mont. 182, 22 P. 1148; 23 C.J. 47, 48.) In this case almost all of the recognized "badges of fraud" are present in the transaction. (27 C.J. 484, 485, 488-490, 493, 494.)
We have in this case a mixed up situation of principals and agents. At the time of bringing the attachment action by plaintiffs, September 16, 1929, or at least immediately thereafter, Wilson was the agent and attorney for defendant Johnson, and had knowledge, during this time, of the "abortive" mortgage. On September 23, defendant Wine became, and still continues to be, the attorney and agent for the defendant Johnson. On September 28, Wilson became, and continues to be, the agent and attorney of defendant Wine. Wilson, the agent of Wine, at the time Wine attached, had actual admitted knowledge of the "abortive" mortgage. Johnson, as Wine's client, admittedly had full knowledge. As to when notice to the agent is notice to the principal, see Fowlie v. Cruse, 52 Mont. 222, 157 P. 958; Stone-Ordean-Wells Co. v. Anderson, 66 Mont. 64, 212 P. 853; Healy v. Ginoff, 69 Mont. 116, 220 P. 539; Comerford v. United States F. G. Co., 59 Mont. 243, 196 P. 984; Bachman v. Gerer, 64 Mont. 28, 208 P. 891; Wells-Dickey Co. v. American Ins. Co., 69 Mont. 586, 223 P. 489; Luther v. Lee, 62 Mont. 174, 204 P. 365; Midland Motor Co. v. Norwich Soc., 72 Mont. 583, 234 P. 482; Baker v. Union Assur. Soc., 81 Mont. 281, 296, 264 P. 132; Ragsdale v. Bothman, 81 Mont. 408, 263 P. 972; Scroggs v. Harkness Heights Land Co., 76 Colo. 597, 233 P. 831; Daley v. Irwin, 75 Cal.App. 732, 243 P. 443; Price Produce Com. Co. v. Intermountain Assn. of Credit Men, 43 Idaho, 540, 253 P. 854; Lowenthal Co. v. McCormack Bros. Co., 144 Wn. 229, 257 P. 632; Southern Casualty Co. v. Hughes, 33 Ariz. 206, 263 P. 584; Moore v. Ellison, 82 Colo. 478, 261 P. 461; First Nat. Bank v. Mee, 126 Okla. 265, 259 P. 523; Evona Inv. Co. v. Brummit, 66 Utah, 373, 240 P. 1105; Thimsen v. Reigard, 95 Or. 45, 186 P. 559; 2 C.J., sec. 542, pp. 859-863; 11 C.J., sec. 200, p. 523.
Relative to scope of agency between attorney and client, see: Allen v. McCalla, 25 Iowa, 464, 96 Am. Dec. 56; 6 C.J. 637-641, secs. 143, 144; Davenport v. Davenport, 69 Mont. 405, 222 P. 422; Bury v. Bury, 69 Mont. 570, 223 P. 502; State v. Turlock, 76 Mont. 549, 248 P. 169; In re Miller's Estate, 71 Mont. 330, 229 P. 851; Lehman v. Knott, 100 Or. 240, 187 P. 1109; Rauer v. Hertweck, 175 Cal. 278, 165 P. 946; Pyeatt v. Estus, 70 Okla. 160, 4 A.L.R. 1570, 179 P. 42; Gaver v. Early, 58 Cal.App. 725, 209 P. 390; Bogart v. George K. Porter, 193 Cal. 197, 31 A.L.R. 1045, 223 P. 959, at 964, 965; Herrick v. Woodrow-Shindler Co., 75 Colo. 363, 226 P. 137; Littauer v. Houck, 92 Mich. 162, 31 Am. St. Rep. 572, 52 N.W. 464; Atkinson v. Foote, 44 Cal.App. 149, 186 P. 831; Bailey v. Hickey, 99 Or. 251, 195 P. 372; sec. 45, 5 R.C.L., at 416, 417.
Mr. Myles J. Thomas, Mr. S.P. Wilson and Mr. J.R. Wine, for Respondents, submitted a brief; Mr. Wine argued the cause orally.
The chattel mortgage here in question throughout the trial was referred to as "abortive," for the reason that the same was not acknowledged, there was no affidavit of good faith, and the mortgagor did not receipt for a copy. By reason of these deficiencies, the mortgage was not entitled to be filed, or to become a record in the office of the county clerk. The attempted filing, therefore, did not impart constructive notice of the mortgage to the public. To meet this situation, the plaintiffs (appellants) alleged that the respondent "Wine well knew, and ever since [Sept. 23, 1929] has well known of said chattel mortgage."
We agree that the law is as stated by appellants' counsel "that the statute is applicable only to creditors in good faith and without actual notice." ( Fergus County v. First State Bank, 67 Mont. 1, 213 P. 1114.) From this it follows that imputed notice, if any, is not sufficient.
Counsel concede that the appellants have nothing but mere inferences to offset the direct, positive and unequivocal testimony of attorney Wine and attorney Wilson, clearly proving lack of knowledge of the mortgage on the part of Wine. The long list of cases on fraud presented in appellants' brief, we believe, state generally the correct rule of law, but are without any assistance in this case for want of facts to which the rule might be applied.
There was no evidence, circumstantial or otherwise, on which to base a finding of fraud. Fraud cannot be presumed. ( Harrison v. Riddell, 64 Mont. 466, 210 P. 460.) "One who alleges fraud must so clearly and distinctly prove the same as to satisfy the mind and conscience of its existence. ( Kahn v. Traders Ins. Co., 4 Wyo. 419, 62 Am. St. Rep. 47, 34 P. 1059.) The law will not impute fraud to any party when the facts and circumstances out of which it is supposed to arise are consistent with honesty and purity of intention. ( Patterson v. Lee Clarke Andreesen Hardware Co., 7 Wyo. 401, 52 P. 1085.)" ( Williams v. Yocum, 37 Wyo. 432, 263 P. 607.)
With the general rule that whatever an agent or attorney learns, during the course of, and within the scope of his employment, concerning the subject matter thereof, is imputed to his principal or client, we have no quarrel. But the general rule on the subject, has many recognized exceptions and qualifications. We believe the correct rule is stated in the California case of Wittenbrook v. Parker, 102 Cal. 93, 41 Am. St. Rep. 172, 24 L.R.A. 197, 36 P. 374, in the following language: "A client, as principal, is not bound by knowledge obtained by his attorney as agent, in the course of other employment."
Practically all the leading cases on this subject are collected in an extensive note appearing in 4 A.L.R. 1592 et seq., and we particularly invite the court's attention to the following subdivisions of that note: "Knowledge not relating to the subject-matter of employment," (p. 1604); "Limited employment" (p. 1605), and "Facts acquired in transacting the business of another client" (p. 1607). (See, also, Dight v. Chapman, 65 L.R.A. 793; Allen v. McCalla, 25 Iowa, 464, 96 Am. Dec. 56; Abell v. Howe, 43 Vt. 403; Atkinson v. Foote, 44 Cal.App. 149, 186 P. 831; 2 C.J., sec. 542, p. 859; 6 C.J., secs. 637-641, pp. 637, 638; Weeks on Attorneys at Law, 2d ed., sec. 237; 1 Thornton on Attorneys at Law, sec. 151.)
We submit that the only just and fair rule is that the client is chargeable with constructive notice of that which his attorney learns, regarding the subject matter of his employment, during and within the scope of his employment, and is not chargeable with anything else.
Ralph Hansen and Raymond Shanley, as copartners, have appealed from a judgment in favor of the defendants, J.R. Wine and Charlie Johnson, entered in an action to foreclose a chattel mortgage and to have all claims of the defendants to the property therein described declared junior and subsequent thereto.
The uncontroverted facts are as follows: In April, 1929, the plaintiffs entered into a contract for the sale to Johnson, of certain real property situated in Powell county, wherein all parties to the contract reside. The consideration was $10,000, payable in installments, for the payment of certain of which Johnson gave three notes aggregating $1,321, secured by a chattel mortgage. A month later plaintiffs sold Johnson eight milch cows, taking his note for $1,000 in payment; this note provided for payment at the rate of $50 per month. In order to secure these payments a chattel mortgage was drawn by a bank official and signed by Johnson. It did not contain an accurate description of the purchased cows intended to be mortgaged, and the required affidavit of good faith and acknowledgment of receipt of a copy were not signed by the respective parties. The defective mortgage was, nevertheless, marked "Filed" on presentation to the county clerk and retained in the files.
Johnson made but one payment on his $1,000 note and did not pay the three notes given in connection with the execution of the land contract and, consequently, plaintiffs seized and sold the property described in the first mentioned chattel mortgage, under power of sale therein conferred, and on September 16, 1929, commenced action on the $1,000 note. In this action plaintiffs ignored the defective mortgage and caused a writ of attachment to be levied upon the property supposed to be described therein, with other property not mortgaged.
On September 23, one week after suit was commenced, Johnson went to the law office of J.R. Wine, in Helena, and there executed and delivered to Wine his note for $900, payable on demand. Five days later Wine went to Garrison by train, where he was met by Johnson and taken to Deer Lodge by automobile. Shortly after his arrival in Deer Lodge, Wine commenced action against Johnson on the $900 note and caused a writ of attachment to be levied upon the property which plaintiffs held under their purported levy; for the purpose of this suit Wine employed S.P. Wilson, Esq., counsel for Johnson, as his attorney. That afternoon Wine, Johnson and Mrs. Johnson met in Mr. Wilson's office, and Wine, as attorney for Johnson, prepared and filed a motion to dissolve plaintiffs' attachment on the ground that the note on which the attachment action was based, was secured by the defective chattel mortgage; he attached thereto a certified copy of the mortgage. The motion was granted and plaintiffs' attachment dissolved on October 5, 1929, and thus Wine's attachment became a first lien upon the property and plaintiffs' security was destroyed, unless plaintiffs could establish the allegations of their complaint in the action at bar.
These allegations are to the effect that Johnson and Wine conspired together to accomplish the result suggested and, in furtherance thereof, Johnson gave to Wine a fictitious note for $900 with the understanding that the latter would do just as he did in order to defeat and defraud plaintiffs of their security. In an attempt to establish these allegations, plaintiffs called Wine and Wilson as their witnesses. Wine covered the field so thoroughly as a witness for plaintiffs that defendants rested their case without introducing any testimony. Wilson admitted that, at the time plaintiffs commenced action on the $1,000 note, he was attorney for Johnson in other matters, and that about that time counsel for plaintiffs advised him that they were attaching, as, for some reason, the chattel mortgage was "no good," but denied that he, at any time, informed Wine of the existence of the chattel mortgage.
Wine testified positively and emphatically that on September 23 Johnson retained him to bring an action to set aside the land contract on the ground of fraud, and that no other matter than those matters relating to such an action was discussed; that at no time did Johnson, or anyone else, disclose to him that Johnson was indebted to plaintiffs in any other transaction than the land contract or mention to him the existence of the chattel mortgage here involved, or the pendency of the plaintiffs' attachment suit, until after his action was commenced and writ of attachment levied. He testified that he refused to take the cancellation suit on a contingent fee, fixed his fee at $1,000, and finally agreed to accept a note for $900, payable on demand, and a promise of $100 in cash at an early date, as the best Johnson could do.
The witness further testified that at the time he went to Deer Lodge his purpose was to go over the land in question and assemble material for his complaint in the cancellation action, and that he then had no thought of suing on his note, but that on the way from Garrison to Deer Lodge Johnson told him of the seizure and sale of personal property under the mortgage given in connection with the land contract, and of other actions and attachments by plaintiffs which would "clean" Johnson of all personal property, and that he then decided that he had better take action "if his note was ever going to be worth anything." He admitted that his action did not affect his friendly relations existing between himself and his client and that, after he had sued Johnson and on the same day, Johnson employed him to move for the dissolution of plaintiffs' attachment, but asserted that it was only after his action was instituted and the papers were served on Johnson that the latter told him of the existence of the defective mortgage and the action of plaintiffs in ignoring it.
The action for the cancellation of the land contract was not instituted until October 29; some time before that date, it is suggested, the land contract was canceled by plaintiffs, but on inquiry, Wine stated that he did not know of this fact until after he commenced action; certainly it was in effect at the time Johnson gave Wine the $900 note.
The defective mortgage was valid as between the parties [1] ( Reynolds v. Fitzpatrick, 23 Mont. 52, 57 P. 452), but was not entitled to record. (Sec. 8276, Rev. Codes 1921.)
It is conceded by the defendants that, under the provisions of [2] section 8279, Id., the rules applicable to "encumbrancers" apply to creditors; each must act in good faith; we do not so hold (see Cardenas v. Miller, 108 Cal. 250, 49 Am. St. Rep. 84, 47 P. 474, construing a like statute), but for the purposes of this opinion will consider the effect of the theory on which the case was tried on Wine's right to attach the property.
To constitute one a subsequent encumbrancer "in good faith" he must have acquired a lien upon the property without knowledge, actual or constructive, of the existence of a prior mortgage. ( Chester State Bank v. Minneapolis T.M. Co., 58 Mont. 44, 190 P. 136.)
The mortgage, although physically filed, was not entitled to [3] filing and, therefore, imparted constructive notice to no one (see Parsons v. Rice, 81 Mont. 509, 264 P. 396, and cases therein cited); hence Wine did not have constructive notice. This is conceded by counsel for plaintiffs, but it is contended that, as his attorney, Wilson, had notice, his knowledge was imputed to Wine.
It is true that an attorney, while on his client's business, [4] is agent for the client, and a principal is deemed to have notice of that of which the agent has notice, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to his principal (sec. 7957, Rev. Codes 1921; Healy v. Ginoff, 69 Mont. 116, 220 P. 539; Coldwell v. Grandin Inv. Co., 64 Mont. 518, 210 P. 765), but the rule as to agents generally is usually confined to knowledge acquired in the course of the employment, and, as to attorney and client, the rule does not pertain with reference to facts acquired prior to the employment or in the transaction of business for another client. (See extensive note 4 A.L.R. 1585, and particularly cases cited at page 1607.) Plaintiffs' success in the trial court, therefore, was dependent upon a showing of actual knowledge of the existence of the mortgage on the part of Wine at the time he commenced his action.
In order to find for the plaintiffs on this issue, the court would have been compelled to disregard all of Wine's positive testimony and construct fraud from the inferences to be drawn from the facts and circumstances showing that the witness must have had knowledge of the existence of the chattel mortgage in order to act as he did. This the trial court could have done.
Owing to its nature, fraud is provable by circumstantial [5] evidence, and the direct and positive testimony of a party charged with fraud and "who would naturally swear to the bona fides of the transaction under investigation" in order to perfect his fraudulent design, may be overcome by the aggregate of trivial, remote and disconnected facts and circumstances disclosing fraud, as "a broken twig or a misplaced pebble" discloses the spoor of his game to the woodsman ( Roman v. Albert, 81 Mont. 393, 264 P. 115, citing Merchants' Nat. Bank v. Greenhood, 16 Mont. 395, 41 P. 250, 851).
The inferences in this case render the conclusion that the opportuneness of Wine's action, following so soon after the note was given him, was a mere coincidence, a severe strain upon the credulity of men versed in the practice of the law, and, had the trial court adopted the course above outlined, we would have no trouble in affirming a judgment in favor of plaintiffs, under the foregoing authorities.
However, Wine's testimony is not before us as triers of the facts; our power is that of review only, and even were we passing upon this testimony initially, it could not be said that it is so impossible as to be entirely unbelievable. Remarkable coincidences do occur in life and in the practice of the law. Whether or not the instant case presented one such was for the trial court to determine, not from the cold record as it is presented to this court, but with the witnesses before it, thus presenting methods of testing and determining the truth or falsity of the testimony not available to us.
From his superior coign of vantage, the learned trial judge, with more than a quarter of a century of experience in judging of the credibility of witnesses, and, as a judge of human nature over a long period of years, called upon to determine, from indicia furnished by manner and appearance, as to whether or not a witness was speaking the truth, found categorically, on every issue and every question presented, for the defendants and in so doing he was certainly guided by his well-known knowledge of the rules of law governing in such cases, among which are the following:
Among the disputable presumptions declared by section 10606, [6] Revised Codes 1921, are "that a person is innocent of crime or wrong" (subd. 1), and "that private transactions have been fair and regular" (subd. 19). These presumptions prevail until overcome by evidence satisfactory to the trier of facts.
"In actions involving fraud, as in other cases where the facts present a double aspect, one consistent with fair dealing and the other involving dishonesty of purpose, the court, unless the scale decidedly preponderates for the latter, will strike the balance in favor of honesty and innocence." (1 Jones, Blue Book on Evidence, 100.)
Here, it must be remembered there are no conflicts or [7-9] inconsistencies in the testimony, — it is all one way, in favor of defendants. Counsel for plaintiffs frankly concedes that he must rely solely upon inferences, strong in themselves, but which, when satisfactorily explained, show but a startling coincidence, and, whether or not the trial court should believe, or not believe, the explanation given, depended largely upon the conduct of the witness on the stand, his manner of testifying, appearance and demeanor while testifying — matters not contained in the cold record.
"Words merely appearing upon the printed page are far less communicable than when they are expressed with the tongue, * * *; the speaker can put into his words something which the writer cannot put there * * *; he may convey by the tone of his voice, by a look or a gesture, suggestions too subtle for expression on the written page." ( Labbitt v. Bunston, 84 Mont. 597, 277 P. 620; State v. Sawyer, 71 Mont. 269, 229 P. 734.)
It has been said that "to speak the truth is natural and instinctive, while the utterance of falsehood does such violence to a man's moral nature as to be almost always more or less perceptible in the voice, the countenance, the language, and the whole manner of the witness." ( Hodge v. Buffalo, 1 Abb. N.C. (N.Y.) 356.)
It is for such reasons as the foregoing that, in determining questions of fact, "due allowance must be made for the more advantageous position occupied by the trial judge, in that he has had the opportunity to observe the conduct and appearance of the witness while testifying" ( Barnard Realty Co. v. City of Butte, 55 Mont. 384, 177 P. 402), and, unless the evidence, not affected by these considerations, clearly preponderates against the court's findings, they must be accepted by this court as conclusive. ( Boyd v. Huffine, 44 Mont. 306, 102 P. 228; Bosanatz v. Ostronich, 57 Mont. 197, 187 P. 1009; Kummrow v. Bank of Fergus County, 66 Mont. 434, 214 P. 1098; Labbitt v. Bunston, above.)
As was said in Boyd v. Huffine, above: "While, on the whole, it may be said that the trial court might have reached a different conclusion, it cannot be said that the evidence shows a decided preponderance against any findings. Under the circumstances this court must accept them as conclusive."
Judgment affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and ANGSTMAN concur.