dissenting.
This court has many times said that in a jury-waived law action the trial court’s finding has the same effect as a verdict and will not be set aside unless clearly wrong. Pester v. American Family Mut. Ins. Co., 186 Neb. 793, 186 N. W. 2d 711. This is fundamental and salutary doctrine and should be observed. We have violated the principle in this case and made ourselves the finder of the facts. This is evidenced by the following quotation from the majority opinion: “The testimony of Simpkins is much more within the range of believability.” The agreement may indeed be an unusual one, but then many agreements in areas with which we are unfamiliar may seem unusual, but this is surely not the sole measure of the credibility of the witness who testifies concerning it. Indeed, it might have nothing to do with credibility whatever.
An examination of the pleadings in this case does not, as is not unusual in a replevin action, disclose precisely what interests the parties claim; other than the right to immediate possession. The plaintiff’s petition simply stated she claimed an interest and had the right to possession. The defendants’ answer was a general denial.
An examination of the pleadings shows that the dispute was over ownership. The defendant Kate Ritter, testifying to the course of the conversations which led to her claimed ownership of the horse, said: “She still wanted me to take the bay colt and I told her again that I could not afford a horse, and she said this is not going to cost you anything, I am giving this horse to you, it’s his only chance. And I said we would have to think it over.” With reference to the transaction itself, she testified: “Agnes Simpkins wanted to know if what we had decided and we told her again that we could not afford a horse of our own. She said T am giving you this colt, do you understand that, and I said, well we will do what we can, we will try, and *649she cried she was so happy that we had taken the colt known as Cider Dave.”
Exhibit 4 to which the trial court made specific reference was the Jockey Club registration for Cider Dave. On the back thereof there appears the following: “All transfers must be signed by previous owner or authorized agent, showing address of new owner and date of transfer.” Then is shown a transfer to Kate Ritter of Anthony, Kansas, the date 6-8-70, and the signature of Mrs. Agnes I. Simpkins. The evidence shows that Kate Ritter, as owner, registered Cider Dave with the Secretary of the Racing Commission. Exhibit 19 referred to by the court is a pamphlet of the rules of the Racing Commission of the State of Nebraska adopted pursuant to statute. These rules, among other things, provide as follows: “Each trainer shall register with the Racing Secretary all the horses in his charge giving the name, age, sex, breeding and ownership of each.” Rule 12.36, Nebraska Rules of Racing, 1970, p. 84. “All ownerships in a horse, except a trainer’s percentage of his winnings, shall be filed with the Racing Secretary, before the horse shall start, as also shall every change in ownership thereafter during the meeting.” Rule 13.55, p. 98. “The Jockey Club Registration Certificate for all horses entered in claiming races must be in possession of the Racing Secretary. When ownership changes as a result of a claim, the Racing Secretary shall cause the Jockey Club Registration Certificate to be properly endorsed prior to transfer to the new owner’s file.” Rule 13.56, p. 98. “No person, or persons shall enter or allow to be entered in a claiming race, a horse against which any claim is held, either as a mortgage, bill of sale, or lien of any kind, unless when or before entering the horse the written consent of the holdér of the claim shall be filed with -the Association conducting said race.” Rule 15.13, p. 122. - '
The rules themselves, of course, do not directly establish ownership but compliance or noncompliance there-*650w.ith by parties who are in the business such as the plaintiff and defendants is certainly admissible evidence on the issue of ownership-. Among the items which the court considered decisive is included a statement in the following form requested by Simpkins and signed by Kate Ritter and according to her testimony back-dated at the request of Simpkins. “If anything should happen to me while I own Cider Dave, I here by want the colt to be given to Agnes Simpkins for her own.” Simpkins denied the document was in the form in which she wanted it but nonetheless she kept it.
Also included in the documentary evidence is a letter from Simpkins to Kate Ritter, mostly about racing of horses, which contains the following: “Lannigan moved % mile west of us and have been trying to find out— they don’t believe Dave is yours — plain call us liars to our face.” The same letter said: “I hope Dave makes you money every time he runs.” Another letter from Simpkins to Kate Ritter contained the following: “Kate ■ — I hope Dave is the best thing that happens to you — We liked him from the start & that is why I kept pushing him at you. It is his only chance.”
Simpkins acknowledged that if Ritters had put Cider Dave in a claiming race and if the horse had been claimed, the Ritters would have been entitled to keep the purchase price.
No matter what words may be used to describe the nature of the property interest of the parties in Cider Dave, there is no doubt about what the trier of the fact found and that there was far more than just substantial evidence to support the findings.
Disregarded completely in the majority opinion are the following factors which support the finding of the trial court. If Ritters could make Cider Dave a winner, Simpkins would profit because under Nebraska regulations she, as the breeder, would receive 20 percent of the purse and in addition the value of the parent stock which she owned would increase. Also worthy *651of note is the fact that Cider Dave had a foot problem which made his future uncertain. The Ritters apparently trained and raised horses for other people, but until they took Cider Dave owned none of their own. Ritter’s husband was a plater and a trainer. Simpkins was not in a position to race the horse. The expert testimony showed that the cost or the value of the 90-day training period to get Cider Dave ready for racing was $750 to $1,000. Cider Dave earned $2,400 in 1971. There was evidence which would indicate that at the beginning of the period Cider Dave’s value was from $500 to $1,000.
I would follow the rule which has previously always been followed by this court. This case wholly turns on questions of credibility. The apparent claim of the majority opinion that the trial court misconstrued the applicable rules of law just is not correct.
McCown, J., joins in this dissent.