(dissenting).
I am compelled to dissent from the majority opinion, because it is opposed to the well-established rule, not only in this circuit, but elsewhere, that an appellate court should not reverse a finding of fact by the court below, unless such finding is clearly wrong. The oral testimony in the case was conflicting, and was given by two witnesses. The referee, who saw them, and could observe their manner in testifying, believed one of those witnesses, instead of the other, and made his finding of fact upon his testimony. This finding was affirmed by the District Judge, and there is nothing in the record to show that his decision was pro forma, as stated in the majority opinion. It is to be assumed that his decision was reached after a full and adequate consideration of all the competent evidence. Where a finding of fact has been made by a referee, and affirmed by the District Judge upon review, it should not be reversed, unless clearly wrong or manifestly against the weight of evidence. Even, if probabilities are to be considered, they do not, in my mind, constitute sufficient reason for disturbing the finding of fact made under such circumstances, nor can it be said that they all appear to oppose it.
Although Murphy was a confessed embezzler, there is nothing in the record to show that he had any interest in testifying that he applied to Phelan to aid him personally; nor, taking into consideration the confidential relation which existed between him and Phelan,’ does it seem to me improbable that he should have disclosed to Phelan that he had taken the funds of the corporation for his persona] use, and wanted his assistance in replacing them. On the other hand, Phelan testified under the influence of self-interest, as it is evident that his claim would be of greater value if he could establish it as a debt of the corporation, rather than as a debt of Murphy.