EHLER v. COUNTER L. CO., 103 Colo. 333 (1938)

86 P.2d 232

EHLER v. COUNTER LUMBER COMPANY.

No. 14,480.Supreme Court of Colorado.
Decided December 19, 1938.

Suit on promissory note. Judgment for plaintiff.

Affirmed.
On Application for Supersedeas.

1. APPEAL AND ERROR — Fact Findings. Where the evidence in a case is conflicting, it is for the trial court as the fact-finding body to determine the credibility of the witnesses as well as the weight of their testimony, and its conclusions thereon will not be disturbed on review.

Error to the District Court of Adams County, Hon. H. E. Munson, Judge.

Mr. WILLIAM W. GAUNT, for plaintiff in error.

Mr. HARRY BEHM, for defendant in error.In Department.

MR. JUSTICE BOUCK delivered the opinion of the court.

ON May 20, 1931, the plaintiff in error, John Ehler, was indebted to the defendant in error, the Counter Lumber Company, for a balance of $3,750.34. That day he signed and delivered to the company his promissory note for the sum, payable on December 1, 1932. On May 29, 1931, he executed and delivered to the company a quitclaim deed conveying certain real property. In April, 1938, the company commenced an action to recover on the note. In his answer Ehler claims that the deed was given in full payment of the note. In its replication the company claims that the conveyance, though absolute in form,

Page 334

was intended by the parties as a mortgage to secure the note.

The district court placed upon the company the burden of proving by clear and convincing evidence that the deed is a mortgage. Evidence was introduced by both sides. Findings of fact were made in favor of the company, and judgment was entered against Ehler for the amount due on the note. This judgment is before us for review.

[1] The record presents a simple case of contradictory evidence. It was for the trial court, as the fact-finding body, to determine the credibility of the witnesses coming before it, as well as the weight of their evidence. With the conclusions of that tribunal we have no right to interfere.

Judgment affirmed.

MR. CHIEF JUSTICE BURKE, MR. JUSTICE YOUNG and MR. JUSTICE KNOUS concur.