Clausen v. Hale

Winslow, J. The testimony in this case as to the real nature of the transaction between Lewis and the claimant is necessarily very meager. Mr. Lewis being dead, we do not know his version of it, and the statute excludes the claimant’s version. Some of the facts in the evidence point strongly to the conclusion reached by the trial court. It may be conceded that some of the facts rather tend to support the opposite theory. It is a case where the vital findings or inferences of fact must be based upon somewhat unsatisfactory [103] and fragmentary evidence, but we cannot say that these findings are clearly against the preponderence of the evidence; hence they cannot be. disturbed. Some contention was made to the effect that the claimant, when called as a witness for the defense, was examined as to the transaction between him and Lewis, and, hence, that he should have been permitted to answer questions which his counsel afterwards put to him with regard to what was said and done at that interview with Lewis. Careful examination of the testimony shows, in our judgment, that no question was allowed to be answered as to the interview in question. By the Gourt.— Order affirmed.