
    [No. 4544.
    Decided March 16, 1903.]
    Oliver W. Shead, Appellant, v. J. A. Moore, Respondent.
    
    APPEAL-REVIEW OF FINDINGS OF TRIAL COURT.
    The supreme court is not hound hy the findings o£ the trial court upon conflicting evidence, especially in a case where the greater part of the testimony is in the shape of depositions.
    Appeal from; Superior Court, King County. — Hon. Boyd J. Tallman, Judge.
    Reversed.
    
      George E. Wright, for appellant.
    
      Smith & Cole, for respondent.
   The opinion of! the cou;rt was delivered hy

Dunbar, J.

— This ¡ action was brought by one of three joint makers of a promissory note against another maker to- enforce contribution. The note w<as executed by the defendant J. A. Moore, together with George W. Grover and W. O. Grover. Hpon its maturity it was paid by the estate of W. O. Grover, who- had deceased ¡since mailing the note. Plaintiff is the .assignee of the estatei of W. O. Grover. The complaint alleged the insolvency of George W. Grover, and demanded judgment against the defendant,' Moo-re, for one-half the amount paid by the estate of W. O. Grover, together with interest. The answer alleged affirmatively as> a defense that Moore signed the note as a surety only. The ease was tried before the court, which, after hearing the testimony, found that tlie note was signed by the defendant! as a surety only, without consideration, and dismissed the action, awarding costs to the respondent. Plaintiff excepted to the findings of fact, 'and proposed, findings to the effect that the defendant 'signed the note as a maker’ thereof, and for a valuable consideration moving to him, and from the action of the court! in dismissing the cause this ap>peal is taken.

It is not necessary for the purposes of this opinion to enter into, a history of the circumstances and conditions leading up to filie making of this note. The testimony in the case is not very extensive, hut is exceedingly contradictory, the defendant testifying positively that he signed the note as surety only, that he signed after both George W. Grover and AY. O. Grover had signed, and that he placed his signature on the note above the ¡other signatures for the reason' that there was net; room on the note to sign below the signatures of the Grovers. This testimony is in a measure corroborated by the deposition of witness Eogg. On thlsi other hand, George AY. Grover testified positively that'defendant, Moore, signed the note first, that he himself signed’ next, and that AY. 0. Grover signed last; that AAT. 0. Grover did not sign until he (George AY. Grover) took the note from Boston, where he and Moore had signed it, to Beverly, several miles from Boston, where AAr. O. Grovea” resided; and that the said AY. O. Grover, after I noticing the names on the notei, signed it without comment. This testimony comports with the face of the note.

It is insisted by the respondent that this court will be bound by the findings of the lower court. But, while the'fjudgmemtl of. the trial court, who. had opportunity to see the witnesses on the stand, will he given due consideration, it will noit be controlling, and this court must, of necessity, weigh the testimony. Especially is this true where, as in this case, the greater part of Ifha testimony is by deposition. Th’e testimony of the two- witnesses who- were parties to the transaction being conflicting, such testimony will have to be considered in connection with other circumstances surrounding the casa While it is probably true th'at the location of a signature on a note does not determine whether it is the signature of a surety or maker, it is doubtless the common practice for the maker of a mote to affix his signature to the note first, the signature of the surety following; and this is a circumstance to be considered in determining the status of the signers. Again, so far as this note indicates, all the parties are makers, and it is a joint and several note.

It | is contended by the appellant that, when submitted to the test of a magnifying glass, it is plainly observable that the signature of Moore was written before that of the next signer, George W. Grover, (it appearing that a| portion of the capital “G”, the first letter in thei word “Grover”, overlaps and spreads over the first letter of “o” in Moore’s signature; and witnesses, who showed some experience in reading and detecting signatures and who were entirely disinterested, testified that the name Grover must necessarily have been written after the name Moore was written. It appears to us also-, without any reasonable doubt, that such( is the case. It lis truei, noi doubt, that the chemical qualities of ink differ — that some inks fade and are absorbed sooner than'[others- — so that we do not| regard the appearance in that respect as- absolute proof; but to our minds it is a strong indication, and a circumstance to- be considered in the cause. As we have before indicated, the location- of! the signature is not conclusive of the legal responsibility of the signer-; but the determination of the question in this case is important as affecting the credibility of the witnesses, there being direot conflict in the testimony on this particular point. We tbimk there is sufficient consideration shown by the whole record, and that the respondent has failed to overcome by clear and convincing testimony the presumption established by the face of the'note that he is ai maker for a consideration.

The judgment will therefore be reversed, and the cause remanded, (with instructions to the lower1 court to grant the relief prayed for in the complaint.

Fullebton, O. L, and Hadley, Andebs and Mount, LL, concur.  