Johnson v. Kountze

Mr. Justice Goddard delivered the opinion of the court. The important and essential question of fact in controversy before the trial court, and upon the maintenance of which the right of the intervenor to the relief sought necessarily depends, was whether the tract of land in dispute was included with the ten acres in his purchase from Terry, and the existence of the verbal contract between them, in pursuance of which he alleges the land was conveyed to the Rail [489] road Company for his nse and benefit. Upon this question there were but two witnesses, the intervenor Johnson and John H, Terry. Johnson testified that he purchased from Terry eleven and one half acres of land, and also the tract of land in dispute (designating it as the “right of way tract ”) for the sum of $1,500; that at his suggestion and by his direction the right of way tract was conveyed to the Railroad Company. Terry testified that he did not sell to Johnson the right of way tract, and that there was no agreement of any sort, written or oral, that he should have this tract of land as a part of the consideration of $1,500; and that for the $1,500 paid he gave him ten acres of land only. It is insisted by counsel for appellant that, notwithstanding this conflict of testimony and the finding of the court below against the intervenor, an examination and consideration of the entire testimoity of these two witnesses, shows a preponderance in favor of intervenor, and that we should review their testimony and determine its weight and preponderance. The rule is well settled by the repeated decisions of this court that the finding of the trial court or the verdict of a jury upon conflicting testimony will not be disturbed, unless manifestly against the weight of evidence. As was said in Green v. Taney, 7 Colo. 278: “ This court will only interfere where, upon the whole record, it appears that the jury acted so unreasonably in weighing testimony as to suggest a strong presumption that their minds wer^ swayed by passion or prejudice, or that they were governed by some motive other than that of awarding impartial justice to the contending parties.” Barker v. Hawley, 4 Colo. 316; Dickson v. Moffat, 5 Colo. 114; Kinney v. Wood, 10 Colo. 270; Ziegler v. Cole, 15 Colo. 295. The court below, therefore, being the exclusive judge of the credibility of the witnesses and the weight to be given to the testimony of each respectively, as there appears an irreconcilable conflict between them, its finding in favor of appellees cannot be interfered with; and since the adverse determination upon this question of fact is fatal to the [490] intervenor’s right to recover, it becomes unnecessary to consider the questions of law so ably and exhaustively discussed in the briefs of the respective counsel. For the reasons given, the judgment must be affirmed, Affirmed.