On Application for Rehearing.
PER CURIAM.Appellant, in his application for rehearing, makes the point that the court in its opinion failed to pass upon appellant’s assignment of error challenging the right of the trial court to incorporate in the bill of exceptions the trial court’s “memorandum of decision.”
The assignment was not given express notice in the opinion, principally because it was without merit. The authorities referred to by appellant (Utah Commercial & Savings Bank v. Fox, 44 Utah, 323, 140 Pac. 660, and Miller v. Marks, 46 Utah, 257, 148 Pac. 412) do not hold that it is error to include the opinion of the trial court in a bill of exceptions. The effect of the court’s holding in the cases referred to is that when the opinion of the trial court is incorporated in the bill it is properly before this court, but has no judicial effect; nevertheless it is said the opinion “may be looked to to ascertain the judge’s reason for his decision. ’ ’
The further suggestion is made that this court in its decision gave great weight to the trial court’s “memorandum of decision.” We can conceive of no excuse for such suggestion other than that we felt it our duty to affirm the judgment after a most careful consideration of all the evidence.
Appellant’s principal contention is that the evidence preponderates in favor of appellant. That was his main contention before the opinion was written. Upon that question appellant has made a masterful presentation, and one which challenged further consideration of the facts.
This opinion has been delayed in order that every member of the court might have ample opportunity to again review the evidence. We have done so, conscientiously, and find no reason for changing our opinion. While admitting that the question is exceedingly close, and for that reason difficult to determine, yet we are unanimous in the conclusion that we *132are not warranted in bolding that the findings of tbe trial court are against the clear preponderance of the evidence. That being the case, onr duty is clear, whatever might have been onr opinion had we been triers of the facts.
The application for rehearing is denied.