Opinion
NO. 2935.
Argued October 2, 1953.
Decided October 7, 1953.
EXCEPTIONS FROM CIRCUIT COURT THIRD CIRCUIT, HON. M. SAPIENZA, JUDGE.
LE BARON, J., AND CIRCUIT JUDGES CORBETT AND HEWITT IN PLACE OF TOWSE, C.J., AND STAINBACK, J., DISQUALIFIED.
B. Houston (also on the briefs) for appellant.
G.E. Cox ( Smith, Wild, Beebe Cades with him on the brief) for appellee.
This is an action in assumpsit to recover unpaid balances due upon three promissory notes which are the last to be satisfied out of a series of forty-nine notes between the same parties. (For a fuller description of that series, see Hilo Finance Thrift Co. v. Carey, 37 Haw. 503.) The action was tried, jury waived, after which the trial judge by written decision found for the plaintiff, as payee, and accordingly entered judgment against the defendant, as payor. The defendant appeals by way of exceptions and relies in his specification upon two alleged errors. Of the two, only one merits consideration. It challenges a finding of fact which the trial judge made in his written decision. The finding as set forth in the defendant's specification of error is "that the parties did not enter into a contract prior to the commencement of the action herein for the settlement of defendant's note indebtedness involved herein."
The evidence pertaining to the existence or nonexistence of such a contract is conflicting not only between the testimony of the defendant and that of two rebuttal witnesses for the plaintiff but between the defendant's testimony on direct examination and his testimony on cross examination. Moreover, the trial judge's finding of fact upon such conflicting evidence involves the weight of that evidence and the credibility of witnesses which were within his exclusive province to decide as the trier of fact in a jury-waived case. No citation of authorities is necessary to say that this court on appellate review will not disturb that finding where, as here, there is substantial evidence, more than a mere scintilla, to support it.
Exceptions overruled.