Steele v. Shaffer

*633 Fellows, J. In the latter part of 1925 and the fore part of 1926, there was considerable activity in Muskegon in lake frontage on Lake Michigan. Defendant Page is a dentist, defendant Shaffer a real estate dealer. They had an option from defendants Fagan and Larsen of some lake frontage in Leelanau county. Plaintiffs are dentists and purchased the Leelanau county property of defendants Page and Shaffer in February, 1926. We are satisfied that none of these parties had seen the property before the sale. The purchase was for resale. The only question in the case is one of fact, i. e., whether defendants, and particularly Dr. Page, represented that the frontage had a sandy beach. Plaintiffs affirm and defendants deny that such representations were made, Dr. Page particularly testifying that in reply to an inquiry by plaintiffs on that subject he stated that he did not know, that he had never seen the property. We may assume from this record that each of the parties is a man of probity and high standing in the community, as each one so concedes of his opponent. Indeed, the case presents little of acrimony common to lawsuits. The burden was on the plaintiffs to establish their case. The trial judge who heard and saw the witnesses held that they had not met the burden and dismissed their bill filed to set aside the transaction. A careful reading of the testimony in this record is not persuasive that we should reach a different result. While we hear chancery cases de novo and are not controlled by the finding of fact of the trial judge, we should hot overlook the fact thnt he had an advantage we do not possess, that of seeing, hearing the witnesses in open court. While not controlling, his opinion as to their credibility is always helpful. Fraud is never presumed; it must be proven by a *634 preponderance of the testimony. We can not upon this record find that it has been so proven. The decree must be affirmed, with costs. North, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Chief Justice Flannigan and the late Justice Bird took no part in this decision.