Desmond v. Snyder

• Citation: 62 Wyo. 478,174 P.2d 139
• Decision Date: 19 November 1946
• Docket Number: 2345
• Parties: EDWARD V. DESMOND, Plaintiff and Appellant, v. MARY SNYDER, Defendant and Respondent
• Court: United States State Supreme Court of Wyoming

174 P.2d 139

62 Wyo. 478

EDWARD V. DESMOND, Plaintiff and Appellant, v. MARY SNYDER, Defendant and Respondent

No. 2345

Supreme Court of Wyoming

November 19, 1946

APPEAL from District Court, Laramie County; SAM M. THOMPSON, Judge.

Action by Edward V. Desmond against Mary Snyder to recover commission for sale of defendant's real property. From a judgment for defendant, the plaintiff appeals.

Affirmed.

For the plaintiff and appellant there was a brief and oral argument by A. Joseph Williams of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

An appellate court will not reverse a finding if there is a substantial conflict in the evidence; but the evidence, in order to raise a conflict, must be such as to present a fair and reasonable ground for a difference of opinion. The finding or verdict must have meritorious support in the evidence. A few general statements without substantial reasons are not sufficient to raise a conflict.

Wilde v. Amoretti Lodge Co. (1935), 47 Wyo. 505, 41 P.2d 508.

Where testimony is conflicting, the finding of the trial court should not be disturbed, unless such finding is clearly erroneous or against the great weight of evidence. Williams v. Yocum, 37 Wyo. 432.

The rule that appellate courts will not reverse findings of fact by trial courts where there is sufficient evidence to support the findings does not relieve an appellate court of its duty of analyzing the evidence in the light of reason and human experience and giving consideration to the motives and propensities which tend to influence or prompt human action in an effort to solve the question as to whether the judgment is reasonably and substantially sustained by the evidence. There must be more than a conflict of mere words to constitute a conflict of evidence. The contrary evidence must be of a substantial character, such as reasonably supports the judgment as applied to the peculiar facts of the case.

Montgomery Ward & Co. v. Arbogast (1938) 53 Wyo. 275, 81 P.2d 885.

A sa general rule a verdict of a jury will not be disturbed by this court where the evidence is conflicting. A conflict of testimony, however, does not arise merely because one witness testifies contrary to another. There must be substantial evidence in support of the verdict, that is, 'evidence that is reasonable and so consistent with the circumstances and probabilities in the case as to raise a fair presumption of its truth when weighed against the opposing evidence. When it is overwhelmed by the opposing evidence, a verdict cannot stand.'

Hall v Cumberland County Power & Light Co., 123 Me. 200, 122 A. 418.

For the defendant and respondent there was a brief by James A Greenwood and Milton D. Nelson of Cheyenne, Wyoming and oral argument by Mr. Nelson.

POINTS OF COUNSEL FOR RESPONDENT

It is a general rule of wide application that an appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment, order or decree from which the appeal was taken. O'Mally v. Eagan, 2 P.2d 1063 43 Wyo. 233, 77 A. L. R. 582.

If the judgment given can be sustained on any theory, it may be affirmed. 4 C. J. 1132, 1177 Peterson v. Johnson, 1944, 46 Wyo. 473, 28 P.2d 487.

It is well established in Wyoming and elsewhere that the credibility of witnesses is for the trier of facts and not for the appellate court on appeal. (5 C. J. S. Appeal & Error, Sec. 1645) Wallis v. Nauman, 1945, Wyo. 157 P.2d 285; Nick v. John, 1945, Wyo. 157 P.2d 563; Horton v. Colbron, 1944, Wyo. 150 P.2d 315.

The criterion is that there should substantial evidence to support the decision and not a preponderance. Peterson v. Johnson, et al 1934, 46 Wyo. 473, 28 P.2d 487; State Bank v. Trust Company, et al., 1928, 39 Wyo. 46, 270 P. 163; Sims v. Southern Surety Co. 1927, 38 Wyo. 165, 265 P. 450.

Where the evidence is conflicting and there is substantial evidence, as in this case, to support the finding and judgment of the trial court, this court has stated repeatedly that it will not undertake to substitute its own conclusions in favor of those reached by the District Court. Swanson v. Johnson, 1941, 58 Wyo. 1, 122 P.2d 423; Foley v. Hassey, 1939, 55 Wyo. 24, 95 P.2d 85; Murphy v. Livestock Co., 1920, 26 Wyo. 455, 187 P. 187, 189 P. 857, 20 A. L. R. 290.

TIDBALL, District Judge. RINER and KIMBALL, J. J., concur.

OPINION

TIDBALL, District Judge.

The disposition of this case will not require a lengthy opinion as it involves only the question whether the evidence is sufficient to sustain the findings of the trial court, and will probably establish no important precedent, since the same facts would not occur again, and since the law governing such matters is not in dispute.

The plaintiff below, a licensed real estate broker, brought the action to recover for a commission alleged to be due him for finding a buyer for defendant's real property, which was orally listed with him for sale at a price of $ 20,000 according to plaintiff's testimony, and $ 17,000 according to defendant's testimony. There is also a conflict between plaintiff's and defendant's testimony as to when the property was listed. Defendant sold the property for $ 16,000, to a buyer not furnished by plaintiff.

While the property was being handled by plaintiff, a Mrs. Manno offered $ 15,000 for it, and gave plaintiff a check for $ 500, as part payment, but this offer was refused by defendant. It appears that sometime later, Mrs. Manno offered $ 15,200 for the property, and the dispute in the case arises on the question whether the defendant accepted this offer, plaintiff testifying she did, and defendant testifying she did not. The trial court believed the defendant's testimony on this point, and found for her. The plaintiff contends that that finding of the trial court is not sustained by the evidence; and that is the sole question in the case. After the offer of $ 15,200 was made by Mrs. Manno to the plaintiff, he telephoned to the defendant, and told her that Mrs. Manno had made the offer, and contends that defendant accepted the offer over the telephone, whereas defendant contends she refused the offer.

The law is well settled, and appellant concedes that this court will not disturb the finding of a trial court, or a jury, on a question of fact where there is a substantial conflict in the evidence: Peterson vs. Johnson, 46 Wyo. 473, 28 P.2d 487; Long vs. Forbes, 58 Wyo. 533, 136 P.2d 242.

But, where there is no substantial conflict in the evidence or, in a case of conflict between the plaintiff's and defendant's testimony, where the testimony of one of the parties is so improbable, or so in conflict with the established facts in the case that it should carry no weight, the trial court has no legal right to believe such testimony and base a finding on it. Such a case was: Wilde vs. Amoretti Lodge Co., 47 Wyo. 505, 41 P.2d 508; on which case appellant leans heavily in the case at bar.

To summarize the testimony and make the point clear, plaintiff testified that he took Mrs. Manno to see the house in January, 1945, and following this she offered $ 15,000 for the property, and delivered to plaintiff a check for $ 500 in part payment. Defendant refused this offer, and according to plaintiff's testimony, said: "Ed, (meaning plaintiff) if you can get me $ 15,200, it will help pay the commission, and I will accept $ 15,200.00". Plaintiff then called Mrs. Manno, according to his testimony, and told her the defendant would take $ 15,200 for the property, and Mrs. Manno agreed to this offer; whereupon plaintiff called defendant at ten o'clock at night, and told her that Mrs Manno accepted the $ 15,200 offer, and defendant replied, "That's fine." At the trial, Mrs. Manno corroborated plaintiff's testimony, except as to the acceptance of her offer by the defendant, concerning which she had no knowledge. A Mrs. Clarke also gave testimony to the effect that she called the defendant about an apartment in the defendant's property, on which she had deposited $ 10 rental, to see when she could get possession; and defendant told her she had sold the house, and that Mrs. Clarke would have to see the plaintiff. Also plaintiff testified he asked defendant where the abstracts were, and she told him, and he got them and had them brought down to date; appellant arguing he would not have done this...