(dissenting)—I dissent.
The court reverses the judgment and directs dismissal of the cause because the respondent had drawn on his capital account so that at the time of the dissolution it is claimed the value thereof was only $9,141.84. This overlooks appellant’s admission of his indebtedness to the partnership at the time of the dissolution in the sum of $33,900. This, the trial court thought unimportant because of paragraph No. 13, which, so far as material, is:
“ . . . second party [Crofton] grants first party [Bar-green] the option, if first party desires to exercise it, to repurchase the interest of the second party in the co-partnership for the amount that second party paid first party for his interest therein, ...”
It is admitted that the amount paid by the respondent was $27,900.90. The court found that the appellant elected to repurchase pursuant to the quoted provision of the articles, and gave appellant credit for the amount paid, $9,141.84, and entered judgment for the balance, $18,759.06. The appellant’s admitted indebtedness of $33,900 to the partnership now becomes a matter of paramount importance because paragraph No. 14 provides for another method of dissolution which should be followed if paragraph No. 13 is not controlling. Paragraph No. 14 provides for capital investment accounts and the charging of advances and loans.
Both parties should be treated equally. If respondent’s withdrawals are to be taken into account, so should the withdrawals of the appellant.
*255The argument of the appellant is that, at the time of dissolution, respondent’s capital account was reduced to $9,141.84 by borrowing, and that a new oral agreement was made by which respondent agreed to accept the lesser sum instead of the amount fixed in the contract.
If respondent’s interest had multiplied in value so that at the time of the exercise of the option it was worth many times the original cost, obviously, under the quoted terms, appellant could have purchased such interest for the amount respondent paid in the beginning; therefore, it is of no consequence that respondent’s interest, at the time of the exercise of the option, was worth less than the amount originally paid. The controlling factor, in either event, is that the parties agreed appellant would pay, and respondent would accept, the original price. The judgment requires no more.
Appellant testified that prior to the payment to respondent in March, 1953, an oral agreement was made between the parties by the terms of which respondent agreed to accept a lesser sum for his partnership interest. Respondent testified unequivocally to the contrary. The court did not believe the appellant but did believe respondent and made a specific finding that no such agreement was ever made. We are not authorized, under such circumstances, to substitute our judgment for that of the trial court.
From 1893 to 1951, upon appeal to this court, factual disputes were retried, but this is no longer so. The territorial legislature enacted Laws of 1869, chapter 17, § 251, p. 60 (RCW 4.44.060), which has never been repealed, and is as follows:
“The order of proceedings on a trial by the court shall be the same as provided in trials by jury. The finding of the court upon the facts shall he deemed a verdict, and may be set aside in the same manner and for the same reason as far as applicable, and a new trial granted.” (Italics mine.)'
Under this statute, if the findings are supported by substantial evidence, this court is not authorized to substitute its judgment for that of the trial court. Findings of fact possess the same sanctity upon appeal as the verdict of a *256jury. The test is: Does the evidence support the verdict? Only the respondent’s evidence is considered, and that evidence is considered in the light most favorable to the respondents with all favorable inferences.
In construing this statute, the court said in Reynolds v. Dexter Horton & Co., 2 Wash. 185, 26 Pac. 221:
“. . . Unless the finding was so clearly unfounded as that it should have been set aside had it been made by a jury, we should not disturb it. It stands as. a special verdict, and must be so treated. ...”
In Graves v. L. H. Griffith Realty &. Banking Co., 3 Wash. 742, 29 Pac. 344, the court explained the effect of the section in these words:
“The main contention here is, that the evidence does not support the findings. An appellate court in a law case will not usurp the functions of a jury, or of a judge acting in the capacity of a jury, and reverse the judgment because the weight of testimony seems to be on the other side, or because, in a case of conflict of testimony, the jury'believed the testimony of witnesses that it does not believe. This doctrine is so elementary and so universally pronounced by the courts that it would be idle to enlarge on it or to discuss it further. It is sufficient to say that the jury is the judge of the facts. If the testimony on which the judgment is based is competent, and is legally introduced, and if conceded to be true would sustain the judgment, the appellate court will not inquire further as to its sufficiency.
But all of this was changed by the appeal act of 1893 (Laws of 1893, chapter 61, p. 119) which required a retrial of factual disputes in all nonjury cases if the evidence was brought up.
Section 21 of that act, so far as material, is:
“. . . and in actions legal or equitable, tried by the court below without a jury, wherein a statement of facts or bill of exceptions shall have been certified, the evidence of facts shown by such bill of exceptions or statement of facts shall be examined by the supreme court de novo, so far as the findings of fact or a refusal to make findings based thereon shall have been exceptéd to, and the cause shall be determined by the record on appeal, including such exceptions or statement.” Laws of 1893, chapter 61, § 21, p. 130.
*257In Roberts v. Washington Nat. Bank, 11 Wash. 550, 40 Pac. 225, that statute was construed and the court’s conclusions announced in the following words:
“Under the act of 1893 (Laws, p. 130, § 21) findings of fact in-an equity case and in one at law are placed upon substantially the same basis, but thereunder it is made the duty of the appellate court, when exceptions are properly taken to such findings, to examine the proofs contained in the record de novo. ...
“In the case at bar all of the findings of fact were excepted to, and the record contains all of the proofs offered upon the trial in the court below. Hence, it becomes the duty of this court to find substantially as a new question the facts within the pleadings established by such proofs, and determine the rights of the parties upon the facts'so found, even although the trial court upon such proofs had found them differently. In determining the facts established by the proofs the findings of the trial court should receive consideration, but cannot be allowed to control when in the opinion of this court they are contradicted by a clear preponderance of the evidence.”
In explaining the quoted provisions of the appeal act of 1893, the court said in Tilden v. Gordon & Co., 34 Wash. 92, 74 Pac. 1016:
“ . . . This means that this court shall try de novo all questions of fact, where the evidence has been preserved and the trial court’s findings have been excepted to. . . . ”
See, also, Furth v. Baxter, 24 Wash. 608, 64 Pac. 798.
But that statute no longer exists. It was first abrogated by the court itself under the rule-making power. Fischler v. Nicklin, 51 Wn. (2d) 518, 319 P. (2d) 1098. It was expressly repealed by the legislature. Laws of 1957, chapter 7, § 10 (27), p. 25, 26.
The controlling statutory rule respecting the court’s jurisdiction to review factual disputes is RCW 4.44.060.
No longer may this court substitute its judgment for that of the trial court on factual disputes. This court’s power is appellate only. It begins and ends with ascertaining whether the findings are supported by evidence or not. If the findings are supported by the evidence, the judgment *258must be affirmed. In no event are we allowed to substitute our judgment for that of the trial court however much it may be believed that an erroneous conclusion was reached.
We recently summarized the rule in Croton Chemical Corp v. Birkenwald, Inc., 50 Wn. (2d) 684, 314 P. (2d) 622, as follows:
. “The court had the right to believe either theory, since both are adequately supported by competent evidence. The court chose to believe the defendant’s theory and entered judgment accordingly. The plaintiff appeals.
“RCW 4.44.060, Rem. Rev. Stat., § 368, provides, inter alia:
“ ‘. . . The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reason as far as applicable, . . . ’
“Since the court’s findings and judgment are supported by the record, we will not overturn them.”
And, more recently, in Fischler v. Nicklin, supra, we said:
“The court had the right to believe the testimony of either party but chose to believe the respondents’ denial. Even if we were of the view that the appellants’ version was the correct one, since the abrogation by rule of the trial de novo requirement of factual disputes on appeals in nonjury cases contained in the appeal act of 1893, Laws of 1893, chapter 61, § 21, p. 130 (Rem. Rev. Stat., § 1736), Rule on Appeal 65, 34A Wn. (2d) (Supp. No. 7) 27, as adopted effective January 3, 1956, we are not authorized to substitute our judgment for that of the trial court. Bremerton School Dist. 100-C v. Hibbard, ante p. 226, 317 P. (2d) 517; Croton Chemical Corp. v. Birkenwald, Inc., 50 Wn. (2d) 684, 314 P. (2d) 622.”
See, also, Kuyath v. Anderson Constr. Co., 52 Wn. (2d) 174, 324 P. (2d) 264.
In Wikstrom v. Davis, 211 Ore. 254, 315 P. (2d) 597, the supreme court of Oregon dealt with a partnership dissolution in which the partnership articles were quite similar. The provision of that contract was:
“ ‘ * * * The price to be paid by the said Alvin F. Wikstrom for the 49% interest in the stock, good will and fixtures shall be 49% of the value of the fixtures at the *259figure above mentioned [$3820.50], plus 49% of the value of the stock which is to be determined by an inventory to be taken as of January 1, 1948, * * * ”
Upon appeal, the supreme court of Oregon held:
“This language of the agreement is plain and unambiguous. It contains no provision for deducting the amount of such accounts payable as the Davises may have had on January 1, 1948. We find no evidence warranting a conclusion that a figure for accounts payable was an element to be considered in calculating the purchase price chargeable to Wikstrom. ...”
In settling the partnership accounts, the trial court deducted the amounts which the appellant (seller) owed at the time of the admission of respondent to the partnership. This was reversed because the contract contained no such provision. The court said:
“To accomplish this result was, in effect, making a new contract between the parties as to the manner for determining Mr. Wikstrom’s obligation to the Davises.”
Here paragraph No. 13 provides that appellant shall pay respondent for his interest the same amount which he paid. The contract does not contain any provision which authorizes the court to deduct from that amount any sums which respondent may have withdrawn from the partnership. The court is not authorized to make a new contract. Clements v. Olsen, 46 Wn. (2d) 445, 282 P. (2d) 266; Finch v. King Solomon Lodge No. 60, 40 Wn. (2d) 440, 243 P. (2d) 645.
The payment of a smaller sum, which appellant was already bound to pay, is no consideration for the alleged promise of the respondent to forego the residue.
Such has been the law for over three hundred fifty years.2
It is stated in 1 Restatement, Contracts, 83, § 76:
“Any consideration that is not a promise is sufficient . . . except the following:
*260“ (a) An act or forbearance required by a legal duty that is neither doubtful nor the subject of honest and reasonable dispute if the duty is owed either to the promisor or to the public, or, if imposed by the law of torts or crimes, is owed to any person;”
The headnote to'Contracts, 17 C. J. S. 469, § 114, is:
. “Ordinarily the payment of a smaller sum in satisfaction of á larger is not a good discharge of the debt, but this rule is not applicable, where there is a new circumstance raising a new consideration.” . :
1 Williston, Contracts, 415, 416, § 120, states:
“. ,. . Accordingly, the agreement of the creditor to discharge the whole debt then and there due in consideration of the payment of part. is unsupported by sufficient consideration.
Our own cases are in accord. Sanford v. Royal Ins. Co., 11 Wash. 653, 40 Pac. 609; Anderson v. Sanitary Dairy, 160 Wash. 647, 295 Pac. 925.
Had appellant proved an oral modification of the-partnership articles—-that the. respondent would sell his interest for the amount'which' he paid therefor less the amount borrowed fronj, the' partnership—still the appellant should not prevail," because there was' no new consideration for such change. It is'not claimed that there was any new consideration. The court specifically found there was none. The findings recite: “.The .Court, further finds that there was no hew consideration flowing between the parties,
This is fatal to appellant’s claim. At the time appellant exercised his option tó buy respondent’s interest in the firm, the partnership contract was executed. It was no longer executory. We recently held in Snyder v. Roberts, 45 Wn. (2d) 865, 278 P. (2d) 348, 52 A. L. R. (2d) 631:
“. . . The rule is well settled that, when a contract has been executed by one of the parties thereto, it cannot be modified except by agreement supported by a new consideration. Tacoma & Eastern Lbr. Co. v. Field & Co., 100 Wash. 79, 170 Pac. 360 (1918); Stauffer v. Northwestern Mut. Life Ins. Co., 184 Wash. 431, 51 P. (2d) 390 (1935); Hopkins v. Barlin, 31 Wn. (2d) 260, 270, 196 P. (2d) 347 (1948).”
See, also, 17 C. J. S. 861, § 376 (a).
*261The quoted provision of paragraph No. 13 is free from doubt. Indeed, it is difficult to conceive of plainer language. The rules of construction are resorted.to only if the matter is doubtful. Schwieger v. Harry W. Robbins & Co., 48 Wn. (2d) 22, 290 P. (2d) 984; Silen v. Silen, 44 Wn. (2d) 884, 271 P. (2d) 674; Jackson v. Domschot, 40 Wn. (2d) 30; 239 P. (2d) 1058; Tube-Art Display v. Berg, 37 Wn. (2d) 1, 221 P. (2d) 510; Bellingham Securities Syndicate v. Bellingham Coal Mines, 13 Wn. (2d) 370, 125 P. (2d) 668; Brooks v. Brumfield, 129 Wash. 361, 225 Pac. 232; Puget Sound International R. Co. v. Everett, 103 Wash. 495, 175 Pac. 40; Armstrong v. Wheeler, 86 Wash. 251, 150 Pac. 5.
It is familiar law3 that if the meaning of a contract is doubtful or ambiguous, or susceptible of two interpretations, it will be construed against the party drawing it, or the construction adopted which favors the opponent. The partnership agreement was drafted by appellant’s attorney. State Bank of Wilbur v. Phillips, 11 Wn. (2d) 483, 119 P. (2d) 664; Zinn v. Equitable Life Ins. Co. of Iowa, 6 Wn. (2d) 379, 107 P. (2d) 921; Wenatchee Production Credit Ass’n v. Pacific Fruit & Produce Co., 199 Wash. 651, 92 P. (2d) 883; Foss v. Golden Rule Bakery, 184 Wash. 265, 51 P. (2d) 405; Fitzpatrick v. Bradshaw, 171 Wash. 335, 17 P. (2d) 894; Clise Inv. Co. v. Stone, 168 Wash. 617, 13 F. (2d) 9; Chermak v. P. J. Taggares, Inc., 166 Wash. 67, 6 P. (2d) 380; Camp v. Carey, 152 Wash. 480, 278 Pac. 183; Mikusch v. Beeman, 110 Wash. 658, 188 Pac. 780; Puget Sound International R. Co. v. Everett, supra; In re Eighth Avenue in City of Seattle, 82 Wash. 398, 144 Pac. 533.
The parties agreed in writing that the appellant could repurchase the interest of respondent in the partnership for the same amount which respondent paid therefor. Such, likewise, is the judgment, which I would affirm.
March 11, 1959. Petition for rehearing denied.
In 1602, all of the common-law judges agreed in Pinnel’s case, 77 Eng Rep., K. B. 237, 5 Coke 117a, that the payment of a smaller sum will not discharge the whole debt then due even if the creditor agreed.
The same view was reiterated in 1884 by the highest court in the British Empire in Foakes v. Beer, 9 App. Cac. 605.
17 C. J. S. 751, § 324; 12 Am. Jur. 795, § 252.