Chandler v. Madsen

MR. JUSTICE SHEEHY

concurring specially:

I agree with the result here. I affirm the damages award of $97,500 for repair of the house because we are bound by the appellate rule that the findings of a district court may not be *247set aside unless clearly erroneous. Rule 52(a), M.R.Civ.P. A finding is “clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. Gypsum Co. (1948), 333 U.S. 364, 394-395, 68 S.Ct. 525, 541-542, 92 L.Ed. 746.1 am persuaded on this point by the evidence of the contractor that he would not enter into a firm contract for repair at the figure of $67,500. The burden of proof on the plaintiffs was by a preponderance of the evidence. The Gerbase evidence, being credible, is substantial and therefore it overcomes the “clearly erroneous” rule. See Western Cottonoil Co. v. Hodges (5thCir. 1954), 218 F.2d 158.