If this case is considered as an action at law, there is, admittedly, substantial competent evidence to support the trial court's findings. Considering the case as one in equity, as this court has, the weight of the evidence, in my judgment, is not so conclusive against the trial court's findings as to warrant overruling such findings.
The written agreement which appellants admittedly executed is an unambiguous contract to buy a definite number of tickets at a stipulated price for a Chautauqua entertainment to be given during the Chautauqua season of 1923. The fact that appellants signed their names to this agreement carries with it the presumption that the parties knew that they obligated themselves to perform the conditions of the written agreement. That presumption is sufficient, in the absence of evidence, to warrant the court in rendering a judgment against them. There was, in addition, the positive testimony of respondents and their witnesses that no *Page 456 false or misleading statements were made to appellants at the time of the signing of the agreement, or any other time. Apparently the only excuse interposed as a defense is the rather hazy, intangible claim that appellants thought they were only pledging, what they are pleased to designate, their "moral support." Just what duty appellants thought they were assuming by reason of this moral obligation, or what services they understood they were to render, is equally hazy and intangible. Whether appellants considered their moral support should consist in crying from the housetops the approach of the Chautauqua entertainment, or whether they proposed to carry banners up and down the highways, advertising the advantages of a high-class entertainment, or whether it was an agreement on their part to contribute their pro rata share of any deficit that might exist at the close of the week's entertainment, is not yet clear. The trial court, after seeing and hearing the witnesses, concluded it was the latter. In my judgment the trial court was right.
The rule has been repeatedly announced by this court that, while the court has the constitutional right and duty, in equity cases, to review the findings of the trial court it has also declared that findings made upon conflicting evidence will not be set aside, unless it clearly appears that the court has misapplied proven facts, or has made findings clearly against the weight of the evidence. Olivero v. Eleganti, 61 Utah, 475,214 P. 313.
The written agreement signed by appellants speaks for itself. It is an unconditional agreement on the part of appellants to do a definite thing. The probability or improbability of the appellants knowing or not knowing its provisions must necessarily, to a large extent, depend upon the surrounding facts, and the probability or improbability of respondents perpetrating a fraud upon appellants, as claimed. The respondents, presumably, are public-spirited citizens, and were engaged in the laudable effort of securing for the people of the community a week of educational entertainment. The record shows they succeeded, and the Chautauqua entertainment was given in 1923 to the people of *Page 457 the community, based upon the obligation of the appellants herein and others. The improbability of respondents making the alleged false and misleading statements to procure the signatures of appellants, coupled with the other surrounding circumstances in the case, not only fail to furnish any justification for reversing the court's findings, but tend strongly to support the same.
For the reasons indicated, I am of the opinion that the judgment should be affirmed, and therefore dissent.
CHERRY, J., concurs.