It is with grave misgivings that I concur.
There are many circumstances in the case which seem to impeach three witnesses on behalf of defendant, who testified as to what transpired at a stockholders' meeting on December 3, 1927.
If the testimony of the witnesses in question is correct, the judgment should be affirmed. The plaintiff flatly contradicted the testimony in question, and it would seem improbable, as contended by counsel for plaintiff, that he would have bid the amount he did for the interest of George B. Williams in the stock in question if he had known that the stock had been turned over to the company in payment of an indebtedness. Yet it is evident that the memory of plaintiff is bad as it was proven that it was poor. This was shown with reference to a $700 payment on a note he held.
The question of the relative weight to be given to circumstantial and positive evidence is one which has long agitated courts and authors.
No hard and fast rule can be laid down as a guide in such a situation. Dean Wigmore in his excellent work on Evidence, vol. 1 (2d ed.) section 26, in dealing with this problem, states what we think is the correct view. He says: "Indeed, it can be said that there are no rules, in our system of Evidence, prescribing for the jury the precise effect of any general or special class of evidence. So far as logic and psychology assist us, their conclusions show that it is out of the question to make a general assertion ascribing greater weight to one class or *Page 91 to the other. The probative effect of one or more pieces of either sort of evidence depends upon considerations too complex. Science can only point out that each class has its special dangers and its special advantages."
Accepting the general rule that a judgment must be affirmed, where the evidence is conflicting, provided there is substantial evidence to support it, unless the conclusion reached is clearly wrong, I am driven to the necessity of concurring in the order of affirmance.