In his petition for a rehearing, counsel for appellant insists that this court was justified in declaring that the evidence introduced both upon the part of the defendant and the plaintiff, after the proof of the note upon which the action was brought, was sufficient to and did overcome the presumption of a consideration for said note. He calls our attention to certain language used in the case of Adams v. Hopkins, 144 Cal. 36, [77 P. 712], which, he claims, sustains his contention that upon the evidence as shown by the record the case should be reversed, because said presumption was, in truth, overcome. The language referred to reads: "It will be presumed that there was a good consideration for the written release, in theabsence of evidence to the contrary." The rule as thus stated is undoubtedly sound and applicable to all disputable presumptions of fact. In truth, their very characterization by the code provision as "disputable presumptions" carries with it necessarily the right to controvert them by other evidence and the complete exhaustion of their force when evidence has been introduced sufficient to destroy the verity of the facts for which, until then, the law, for reasons of expediency, makes them responsible vouchers. The presumption of a consideration is, indeed, enough to support the note, in the absence of evidence to the contrary. But in whom is vested, under our system, the exclusive province of determining when there isevidence to the contrary? There must be, as counsel will concede, a determination by somebody that there is in fact evidence to the contrary. The fact that the record here seems to show "evidence to the contrary" is not enough, so far as our power over the verdict and findings is concerned. It must have been "evidence to the contrary" to which the proper tribunal has given such weight as to enable it to say that such "evidence to the contrary" has overcome and dispelled the presumption. The learned counsel's argument would be valid and might be sound addressed to a jury or court trying the facts, but when addressed to this court it overlooks the constitutional provision limiting the power of the appellate courts of this state to the determination of questions of law alone, and that, therefore, the supreme and this court would clearly transcend their appellate jurisdiction, as outlined by the constitution, were they to engage in the business of indiscriminately setting aside verdicts of juries and findings and judgments of trial courts upon the ground of *Page 172 the insufficiency of the evidence to sustain them, except, of course, in such cases only in which it can truly be said that as a matter of law, the evidence is not strong enough to uphold such verdicts, findings or judgments. However differently the record evidence may strike different minds, it is evident that the jury trying the issues of fact did not think the evidence was strong enough to overcome the presumption, and it is equally evident that the trial judge, who presided at the hearing of the cause, and who heard the evidence, was of the same opinion when he made the order denying appellant's motion for a new trial. The weight of the evidence and the credibility of the witnesses were matters peculiarly within the duty of the jury to determine, and, having decided the facts against the appellant, and having, it is clearly apparent, in reaching their conclusion, disregarded or discredited the testimony offered by the defendant, we see nothing in the record which would warrant this court in declaring that, as a question of law, their finding is against the evidence.
As we stated in the main opinion, the supreme court, in the case from which we have here quoted the language upon which the appellant so implicitly relies, also uses the following language immediately following that quoted: "Indeed, the Court is not bound to believe an interested witness against such a presumption if the latter satisfies his mind," citing section 2061, subdivision 4, Code of Civil Procedure. The jury and the court appear to have not been satisfied that the evidence overcame the presumption. On the contrary, their minds seem to have been satisfied by the presumption as against the declarations of the witnesses directed against such presumption.
But the learned counsel seems to have formed a total misconception of certain language employed in the main opinion when he says that "it means that it is conceded by reason of the testimony that Walter Morrissey was about to be arrested on a felony charge, and she (the defendant) desired to prevent it," etc. We were discussing the probable specific reasons which might have induced Mrs. Morrissey to sign the note in consideration of forbearance on the part of the plaintiff to institute a civil action against Walter. This discussion was only in reply to the elaborate argument of counsel to the effect that the evidence on the part of the defendant showed threats by the plaintiff of a prosecution of Walter for forgery, *Page 173 for which reason alone, he argued, the defendant signed the note. We stated that in our opinion the evidence fairly warranted the inference that she signed the note upon an understanding that the plaintiff would refrain from suing Walter in a civil action; that (if that were true), while it was not necessary to search for specific reasons which thus influenced her, yet it was equally as reasonable as any other deduction from the evidence that she was almost as much in fear of the consequences of a civil as of a criminal action, and that that fact might have been the cause moving her to execute the note in consideration of forbearance upon the part of the plaintiff to sue Walter in the civil courts. It appeared from the uncontradicted evidence in the record that the plaintiff, at the first interview with the defendant, exhibited the fourteen notes to the latter, said to her that she did not know persons bearing the names ostensibly subscribed to the notes, and that such names could be found neither on the great register nor the tax-roll of the county. While this did not involve upon the part of plaintiff the specific charge of a crime against young Morrissey, the inference was that the transactions represented by the notes were not altogether devoid of fraud of some sort, and we ventured the opinion, therefore, that Mrs. Morrissey, if receiving such an impression, might be nearly as anxious, under such circumstances, to avoid a civil suit as a criminal proceeding, realizing that in the former the facts would be brought before the public as readily as in the latter proceeding. The plaintiff had a perfect right to sue Walter in a civil action, not alone upon the note executed by him to her, but also the right to sue him for money had and received as to the sums represented by all the other notes, if said notes were in fact fictitious, subject, of course, to the defense of a bar under the statute, or to any other legal defense. If the defendant desired that her son should not be sued in a civil action and signed the note in dispute in consideration of such an agreement on the part of the plaintiff, we cannot see that it would be particularly material to ascertain what the specific reason was that prompted her desire to prevent the institution of a civil suit against Walter. The defendant might have believed, from her inspection of the notes, or from any other circumstance brought to her notice, that said notes were forgeries, the result of the criminal acts of her son; yet, if the evidence, presumptive and otherwise, fairly warrants *Page 174 the inference that she was moved to sign the note solely because of an agreement upon the part of the plaintiff that she would not bring a civil suit against Walter, the mere fact of her belief that her son had committed a criminal offense would be, it seems to us, immaterial. All that Mrs. Morrissey said about her son having been accused by the plaintiff of committing forgery and that the latter would prosecute him for the crime was denied by Miss Keating. The jury, as stated in the main opinion, seem to have paid no attention to the testimony of the defendant. But it is enough for us to be satisfied that the evidence, both direct and circumstantial, fairly justifies the conclusion that the consideration for which the note was signed was based upon an understanding that the plaintiff would forbear suing Walter in a civil action; or that the evidence, in the minds of the jury and the judge trying the case, was not sufficient to overcome the presumption of a valid consideration, and that the record before us is not such as would sustain a conclusion by this court that, as a matter of law, the evidence is too weak to support the verdict of the jury and the judgment of the court.
The petition for a rehearing is denied.
Chipman, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 26, 1907.