By the Court,
Prim, J.:This case comes here on appeal to be tried de novo on the pleadings, evidence and verdict of the jury rendered upon the issues of fact submitted to them in the court below. It is provided by section 392, page 192, of the code, that “In suits of equity both issues of law and fact shall be tried by the court unless referred.” The same section further provides that: “Whenever it becomes necessary or proper to inquire of any fact by the verdict of a jury, the court may *225direct a statement thereof, and that a jury may be formed to inquire of the same. The statement shall be tried as an issue of fact in an action, and the verdict may be read as evidence on the trial of the suit.” As the code does not provide when or in what cases it becomes necessary or proper to inquire of a fact by the verdict of a jury, it becomes necessary to look into the general equity practice in order to determine that question. Mr. G-reenleaf, in speaking upon this subject, says: “The chanceller may if he pleases assume to himself the determination of every matter of fact suggested by the record, but if the facts are strongly controverted and the evidence is nearly equally balanced; or if one of the parties has a peculiar right to a public trial upon the fullest investigation, as if the will of his ancestor or his own legitimacy and title as heir at law is questioned, or the chancellor feels a difficulty upon the facts too great to be removed by the report of the master or commissioner; in these and other cases of like character it is the practice in general for the chancellor to direct an issue to be tried at law, to relieve his own conscience and to be satisfied by the verdict of a jury of the truth or falsehood of the facts in controversy.” (3 Greenl. on Ev., sec. 261; 2 JDaniell’s Chancery Practice 1071; 15 Cal. 378.)
Thus it. will be observed that under the old chancery practice the verdict of a jury having been taken by the chancellor as merely advisory to his conscience upon certain controverted facts, was not regarded as conclusive or binding upon him, but might be disregarded and treated as a mere nullity if in his opinion it was not supported by the evidence. And in this case it appears from the record that the issues of fact made by the pleadings were submitted to a jury in the court below, and without any objection whatever being interposed there by either party. And it is claimed here for the first time, on behalf of appellant, that this was not a proper case to be submitted to a jury, but that the issues of fact as well as law should have been tried by the court below without any intervention of a jury.
Upon looking into the transcript and the evidence .taken at the trial and reported by a short-hand reporter, and sub-*226mitt eel upon the hearing of the case here, we think that position is not well taken. Upon the principal issues of fact the evidence was very contradictory and conflicting, and so nearly equally balanced that it was doubtful which scale preponderated; consequently if we are to be guided by the rules of the old equity practice we must necessarily come to the conclusion that it was a proper case to be submitted to a jury. But we are not led to inquire how the verdict of a jury taken under such circumstances in the court below shall be regarded in this court on appeal. Our answer to this proposition is, that it occupies the same position here that it did in the court below; it may be read in evidence, and while not conclusive upon the court it should not be set aside unless clearly against the evidence. But in a case like this, where the main witnesses are either the parties to the suit or persons deeply interested in the transaction out of which the suit arose, and the evidence contradictory and nearly evenly balanced, we think the verdict is not only entitled to weight but to special consideration. The jury having heard the oral examination of the witnesses in the court below, their opportunity and competency for passing upon the credibility of the witnesses and judging of the weight of the testimony were far better than this court could be by merely reading the evidence committed to paper. But having carefully reviewed all the evidence we find that the verdict of the jury is supported by a preponderance of it. It shows that Messrs. Shaw & Henfcon were engaged in carrying on the business of real estate agents and money brokers in the city of Salem; and that respondent applied to them at their office for a loan of one thousand five hundred dollars, offering to secure the same by a mortgage upon certain lands in Polk county; that said Shaw & Henton having no money of their own to invest in loans, reported the application to appellant, who after making the necessary inquiry and satisfying himself as to the sufficiency of the security offered, agreed to furnish the money and take the loan. Being unwilling, however, to have his name known in the transaction on account of not wishing to be annoyed with renewal of notes, extension of time and the *227collection of notes, it was arranged that the note should be executed in the name of Henton and made payable to him or bearer. Appellant having consented to this arrangement, the one thousand five hundred dollars were paid into the office and the arrangement carried into effect. The theory of appellant is, that this loan was negotiated by Shaw & Renton upon their own account and not as his agents, and that he was, a mere purchaser of this note and mortgage in good faith as a matter of speculation and investment. But this theory we think is inconsistent with many circumstances developed by the evidence in this case. In the first place it appears that Shaw & Henton .had no money of their own to invest in such loans. And it is not very likely that the appellant would have paid the full one thousand five hundred dollars for this note if he had been buying it on speculation.
But it further appears from the evidence in this case, that prior to the maturity of this note, and while in the actual possession of appellant, that respondent paid the full amount due thereon, including principal and interest, to Messrs. Shaw & Henton, at their office, with the understanding that it was to be credited upon this note. And the question is raised upon this state of facts as to whether they were the agents of said Swegle and authorized by him to receive said money for him. And while the general rule is that authority to receive payment upon a note like the one in question may be presumed from its possession, yet this presumption may be rebutted and overcome by the evidence. Shaw & Henton not having the actual possession of this note at the time these payments were made, raises a presumption against their authority to receive the money due thereon; but as a matter of fact they may have been the fully authorized agents of appellant for that purpose. The jury by their verdict having so found, and this being the main point upon which the evidence was strongly controverted, we d'o not feel warranted in disturbing their verdict.
Entertaining the views herein expressed, we hold that the decree of the court below should be affirmed, with costs.