I concur in the conclusion that the judgment of the circuit court should be reversed, but am unable to concur in the reasons given by the majority of the court. , As the cause was tried by the court, acting without a jury, it should be presumed to have acted only on the legal evidence adduced (2 Enc. Pl. & Prac. 474), and this court should disregard the incomptent testimony of the defendant mentioned in the majority opinion. With such testimony excluded, I think there is a clear preponderance of evidence in favor of the plaintiff, and for this reason the judgment should be reversed.