*207On Motion for Rehearing.
(Decided February 28, 1920.)
MR. JUSTICE MATTHEWSdelivered the opinion of the court.
1. Appellant’s petition for rehearing urges that the court applies an obsolete rule for the determination of equity cases, quoting a portion of the rule laid down by the court, which appellant admits was the rule in the jurisdiction prior to the enactment of section 6253, Revised Codes, but contending that a different rule applies since the enactment of that section, and that it has been so declared in the following cases: Stevens v. Trafton, 36 Mont. 520, 93 Pac. 810; In re Colbert’s Estate, 51 Mont. 455, 153 Pac. 1022; Barnard Realty Co. v. City of Butte, 55 Mont. 384, 177 Pac. 402; and Lowry v. Carrier, 55 Mont. 392, 177 Pac. 756. The authorities cited deal with an entirely different phase of the consideration of equity cases, and do not relate to the rule laid down in the line of authorities cited in the opinion.
It is true that in equity cases, since the enactment of the section referred to, the court must review the questions of fact as well as those of law, and determine the case on its merits, to the end that equity cases might be thus finally disposed of on their merits, without the necessity of successive trials on the same state of facts. As was said by this court in Stevens v. Trafton, supra: “The evident purpose of the legislature in passing the law above quoted was undoubtedly to expedite the entry of final judgment in cases where the parties were not entitled to trial by jury; to put an end to litigation, and avoid the necessity of new trials involving expense and the contingencies incident to delay. * * * To the end, therefore, that this court might enter final judgment in these equity causes, it is provided that the court shall, on appeal, determine the same on the merits, unless for good cause a new trial or the taking of further evidence is ordered.” This rule, however, goes no further than to require that the court shall review the questions of fact as well as those *208of law, and dispose of the cause on its merits, and does not affect the rule governing the court in the consideration of the evidence. If, on a review of the questions of fact, it does not appear that the evidence clearly preponderates against the findings of fact by the trial court, the appellate court will not disturb those findings. This is the rule laid down in the opinion in this case, and is supported by all the opinions of this court in equity cases, as stated in the opinion, from Story v. Black, the first case reported in the Pacific Reporter, down to the present time.
2. While it is true the trial' court made no specific finding that the Anderson property was not the subject matter of the contract or agreement between the parties, it so found in effect, and such implied finding is abundantly supported by the evidence. The court carefully considered all of the evidence; and while,, as pointed out in the petition for a rehearing, there was evidence in the case to support a contrary view, the trial court had the advantage of seeing the witnesses on the stand and observing their demeanor, and was at liberty to reject the testimony of the one set of witnesses and accept that of the other, and this court will not, under such circumstances, set its opinion of the evidence up as against that of the trial court.
8. It is suggested that it has been the universal custom of appellate courts, in deciding vital questions of fact, to fairly set forth, in the opinion, the substance at least of the evidence. This we feel has been done in this ease, in so far as the fact conditions are necessary to an intelligent opinion; no good purpose could be subserved in cumbering the record with the mass of testimony set out in the petition for rehearing, as pertinent in this respect.
The petition is denied.
Mr. Chief Justice Brantly and Associate Justices Holloway, Hurly and Cooper concur.