
    [Civil No. 512.
    Filed July 20, 1897.]
    [50 Pac. 112.]
    JUAN P. CHAROULEAU, Defendant and Appellant, v. PEDRO CHAROULEAU, Plaintiff and Appellee.
    1. Appeal and Error—Review—Preponderance op the Evidence— Rev. Stats. Ariz. 1887, Par. 834, as Amended by Laws 1893, No. 21, Approved March 22, 1893.—Under the statute, supra, providing that “upon the general ground that the evidence does not sustain the judgment or the verdict, the court shall review the sufficiency of the evidence in the ease to maintain the judgment or verdict without more particularly specified in the motion,” where all the testimony is set out in the statement of facts, this court on appeal from order overruling motion for new trial will review the evidence, and where the preponderance is decidedly against the judgment it will he reversed and a new trial ordered.
    Baker, C. J., dissenting.
    APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Joseph D. Bethune, Judge.
    Reversed.
    The facts are stated in the opinion.
    
      Rochester Ford, Silent & Campbell, for Appellant.
    Barnes & Martin, for Appellee.
   HAWKINS, J.

This is an action brought by the plaintiff (appellee) against the defendant to recover upon a note alleged in the complaint to have been made by the defendant to the plaintiff for the sum of seven hundred and fifty dollars on the 23d of May, 1888, payable one year after date, with interest at the rate of ten per cent per annum, which the complaint alleges to have been lost. Both complaint and answer were verified. After the evidence was concluded, the plaintiff was allowed by the court to amend his complaint by changing the amount of the note sued from $765 to $665, and the date thereof from May, 1888, to May, 1889; and thereafter the defendant filed his amended answer. The court on April 27, 1895, gave judgment for the plaintiff, to which the defendant excepted; and the defendant then and there moved to vacate and set aside the judgment, and to grant him a new trial, upon the general grounds,—among others, that the judgment is against the evidence and the weight of the evidence. The court on the fifteenth day of May, 1895, denied and overruled the motion, to which ruling of the court the defendant, by his counsel, then and there instantly excepted, and from the judgment and order of the court overruling the motion for a new trial the defendant has appealed.

There is only one question in this case: Is the judgment sustained by the evidence? Paragraph 834 of the Revised Statutes, as amended (Laws 1893, p. 25), is as follows:

“An act to amend paragraph 834, title XV., section 186, chapter 18, Revised Statutes of Arizona Territory, relating to new trials.

“Be it enacted . . . upon the general ground that the evidence does not sustain the judgment or the verdict the court shall review the sufficiency of the evidence in the ease to maintain the judgment or verdict without more particularly specified -in the motion.”

AH the testimony is set out in the statement of facts, and we have complied with the above law, and are of the opinion that the preponderance of the evidence is decidedly in favor of the defendant’s plea that he had paid the note, and judgment should have been in his favor. Reversed, and new trial ordered.

ROUSE, J.

I concur in the foregoing opinion. All the evidence on the trial being preserved in the record, we are able to determine therefrom that, though the declarations in the complaint were that the suit was on a lost note, such was not the fact. The evidence shows that plaintiff and defendant are brothers, and on friendly terms; that plaintiff’s wife and defendant are not friendly, and have not been friendly for many years; that defendant executed the note to plaintiff, as described; that long after the date when said note became, due defendant informed a certain witness that plaintiff’s wife had notified defendant that she intended to go to California, and that, if he did not pay said note, she would give him trouble; that defendant applied to said witness at the time for the loan of a certain sum of money, which defendánt stated he needed to make up, with the amount he had, the sum due on said note; that said amount was loaned to defendant, as testified to by said witness, and as shown by the books of said witness, in which defendant was charged with the amount loaned to him by the witness; that said witness saw the defendant, immediately after defendant borrowed said amount of money, go to plaintiff’s residence, and go into the residence ; that in less than one hour thereafter defendant stated to witness that he had paid the note, and showed the note to witness, and tore the note up in witness’s presence. The evidence shows that plaintiff’s wife went to California about the date when defendant borrowed said sum of money from witness. The record shows that long after the date when defendant borrowed the money from witness and tore the note up in his presence defendant and other persons were at plaintiff’s house to make a settlement for some cattle which had been sold, and the proceeds therefor had been collected by plaintiff; that in said settlement there was found to be due to defendant a large sum of money, which plaintiff paid over to defendant; that plaintiff’s wife was present; and that some time after the money had been paid by plaintiff to defendant, and as defendant was about to leave plaintiff’s house, plaintiff’s wife angrily accosted defendant, and said, “When are you going to pay that note?” to which defendant replied, “Show me a note, and I will pay it.” Plaintiff’s wife testified that she did not make a demand on defendant to pay the note; that she left for California the day before the date that witness saw the note in defendant’s possession; that when she left home the note was in a safe, and when she returned from California it was not in the safe; that her husband could not read and could not open the safe; that she put on paper the combination of the safe, and gave it to her husband; that the-safe had an inside door, which locked with a key, and that key was carried by her husband. The record shows that, once or twice during the time plaintiff’s wife was in California, plaintiff had called on defendant to open the safe, and that defendant could open the safe by plaintiff handing to him the paper on which the combination was written. Plaintiff testified that he retained in his possession the key to the inside door of the safe, and unlocked that door himself. The possession of a promissory note by the maker thereof after it is due is a presumption of payment. Link that presumption with the fact that the note was in a safe securely locked with a combination lock, and with an inside door, the key to which was kept in possession of plaintiff; with the fact that plaintiff and defendant are brothers, and perfectly friendly; that long after said note was due plaintiff paid to defendant a large sum of money and did not demand the payment of said note; and, further, that plaintiff has never demanded the payment of said note, with the fact that the wife of plaintiff is not friendly with defendant, and appears to be the only person concerned in this lawsuit on the part' of plaintiff,— we are forced to the conclusion that defendant paid off said note to the wife of plaintiff at the time he stated. The allegations in the complaint are upon a lost note. The record does not support those allegations. In fact, plaintiff does not pretend to rely on that theory, but on the theory that said note was stolen by defendant. To sustain the judgment we would have to find from the evidence in the record that defendant was guilty of a felony,—that he did steal said note. We are convinced by the evidence in the case that defendant did pay off said note to the wife of plaintiff at the time he stated, and that the judgment should have been for the defendant.

BAKER, C. J.

(dissenting).—I dislike to differ from my associates upon so simple a ease as the one in hand, but am impelled to do so out of regard for the well-established rule that the appellate court will not disturb the verdict or judgment of the lower court where there is a substantial conflict in the testimony upon a material point. The action is upon a promissory note, and the defense is payment. The evidence sharply conflicts upon this single issue, as will be seen in the recitation of facts by Justice Rouse. The appellant’s counsel, in his brief, says that the testimony is “wholly irreconcilable.” No more and no less can be said. The trial court, in the presence of the witnesses, decided this issue against payment, and, I think, upon evidence amply sufficient to sustain the finding. We are not authorized to decide cases in this court upon the mere weight or preponderance of the evidence. The statute quoted by Justice Hawkins authorizes this court to “review the evidence,” but this review is at an end where a material conflict in the evidence appears, or when it appears that the ■evidence is sufficient to support the finding. The fact that Ihe complaint proceeds upon the idea that the note was lost 3s of no consequence. Its execution and delivery were admitted, and the sole defense of “payment” was made. No objections were made to the testimony, and no variance suggested. I think the reversal is wholly unwarranted.  