SCHLANK v. SMITH

SCHLANK v. SMITH. (Circuit Court of Appeals, Eighth Circuit. October 29, 1917.) No. 4829. Appeal and -Erbor 1011(1) — Review—Findings of Fact. A finding of fact by a trial court, made on conflicting testimony of witnesses, some of whom testified orally, will be regarded on appeal as presumptively correct. Appeal from the District Court of the United States for the District of Nebraska; J. W. Woodrough, Judge. Suit in equity by George Warren Smith against Jake Schlank. Decree for complainant, and defendant appeals. Affirmed. William Baird, of Omaha, Neb. (Wm. Baird & Sons, of Omaha, Neb., on the brief), for appellant. Francis A. Brogan, of Omaha, Neb. (Brogan & Raymond, of Omaha, Neb., on the brief),.for appellee. Before HOOK, SMITH, and STONE, Circuit Judges. [MAJORITY — HOOK, Circuit Judge.] HOOK, Circuit Judge. The issue in this suit in equity is as to the existence of an enforceable contract in writing for a 99-year lease- of some ground on Farnam street, Omaha, Neb. The issue turns upon the narrow question of fact whether the proposition of Schlank, to which Smith, the owner; addressed a letter of- acceptance,- included the particular ground in question. Part of thé evidence at the trial was by depositions, and part, equally important, was from witnesses ivho testified orally. The case so made is so nicely balanced that it is difficult to say from the record before us with which party the truth abides. The trial court held with Smith. It had an advantage in hearing the oral testimony and observing the witnesses, which we do not possess. This condition requires the application of the familiar rule that the finding of a chancellor upon conflicting evidence will be regarded on, appeal as presumptively correct. - • ■ • ■ The decree is affirmed.