Carlson v. Dixon

BaeNes, J. Tbe plaintiff claims that in July, 1903, be loaned -tbe defendant $1,000, taking as collateral security bonds of tbe Milwaukee Granite Company of tbe par value of $1,000. Stock in tbe same company to a like amount was delivered witb tbe-bonds, and it does not very clearly appear from plaintiff’s evidence'whether the stock was intended as security or as a gift or a bonus. This action is brought to foreclose tbe pledge and for a deficiency judgment. Tbe defendant claims that be was a broker engaged in sell [64] ing bonds, among others those of the Granite Company, and that he sold the bonds outright to the plaintiff, giving an equal amount of stock as a bonus with the bonds. Plaintiff and defendant were the only witnesses who testified to the transaction, and the court found the facts in plaintiff’s favor. The defendant seeks to reverse the judgment on two grounds:: (1) The finding of the court that the transaction was a loan and not a sale is against the clear preponderance of the evidence; and (2) the plaintiff’s right of action was barred by the statute of limitations. 1. On the first assignment of error it is urged that the circumstances shown clearly indicated that the defendant gave' the correct version of the transaction. These circumstances-in the main were: (a) No note or other evidence of indebtedness was given to the plaintiff, (b) No time of payment was-fixed, (c) No rate of interest was agreed on. (d) No demand for payment of any part of the principal or interest was made so long as the interest on the bonds was paid, nor for some time after the Granite Company ceased paying interest. (e) No satisfactory explanation was made as to why the corporate stock was given to the plaintiff if the transaction was in fact a loan; and (f) to hold that defendant hy-pothecated the bonds instead of selling them would mean that' defendant must have embezzled them. These circumstances are quite persuasive, although the effect of the first and most convincing of them is mitigated by the fact that the parties had been friends for fifteen years, and plaintiff was defendant’s physician and had loaned him money on former occasions, although when prior loans were-made plaintiff had always taken a note. If we were passing-original judgment on the evidence as it appeared in print,, we might well reach the' conclusion that the plaintiff was not' entitled to recover, although there are some circumstances which tend to corroborate his evidence. But where fairly consistent and probable narratives are given by witnesses; [65] whose interests in the result do not differ, the printed testimony of one carries about as much weight to the mind as does that of another. This is not necessarily so, however, where the .trier of fact has the opportunity to observe the witnesses as they testify. There' may be such a contrast between the candor, the demeanor, and the manner of giving testimony by two witnesses who testify to diametrically opposite things that the judge who hears the evidence may be entirely satisfied that one is felling the truth and the other is not. This is the paramount reason why appellate courts are disinclined to reverse findings of fact. The appearance and demeanor of the witnesses here may have been and probably was such that the court was convinced that the jplaintiff was telling the truth. There were but two witnesses on the point, and the circuit judge after seeing and hearing them accepted the plaintiff’s evidence as true, and we do not think if should be said that such a conclusion is against the clear preponderance of.the evidence. 2. The interest on the bonds was payable semi-annually, and as interest coupons became due they were sent by the plaintiff to the defendant, who collected the same up to and including January 1, 1907, and sent his personal check to the plaintiff for the amount of. the interest so collected. Thereafter-the Granite Company defaulted in the payment of the interest on the bonds. No other amount was paid by the defendant on the loan. If these payments interrupted the running of the statute of limitations, it is conceded that the action is not barred. If they did not, then it is conceded that the action is barred. It is argued that the theory upon which it is held that payment tolls the statute of limitations is that it is an acknowledgment of the debt and that there was no such acknowledgment here because the defendant simply acted as a medium through which the Granite Company paid its debt. Accepting the appellant’s statement of the law as being correct, [66] we cannot assent to tbe conclusion readied. It is true tbe Granite Company was paying its own obligation wben it paid tbe interest coupons. It is none tbe less true that tbe defendant was paying bis debt to tbe plaintiff wben be forwarded his check for tbe amount so collected. Defendant owed plaintiff no other indebtedness and tbe coupons were sent to the defendant at bis own request. By tlie Court. — Judgment affirmed.