rehearing">

On Rehearing.

WELCH, J.

On plaintiff’s petition for rehearing, we have again carefully considered this case and examined the record. The respective contentions of the parties are clearly stated in the per curiam opinion of April 24, 1934. Both parties testified as witnesses. The plaintiff’s testimony tended strongly to support all of his contentions, and likewise the testimony of the defendant tended strongly to support all of her contentions. Tlie primary question upon trial was whether the deed was or was not delivered to the defendant by the plaintiff. Plaintiff admitted that he exhibited the deed to the defendant, but contended that he did not deliver it, and he so testified. Upon the other hand, the defendant contends that at that time the plaintiff delivered the deed to her, and she so testified. At that time no other person was present, and there is no other direct evidence iipon that point.

There is other evidence in the record tending to show statements made by the parties and circumstances and acts of the parties: some corroborate plaintiff’s theory, while some support defendant's theory. The plaintiff now urges that most of the matters shown by this proof are inconsistent with the defendant’s contention, but, even if that were fully true, that would not justify this court in reversing the judgment and conclusion of the trial court in this character of action. The rule is correctly stated in the syllabus. The trial court heard the testimony of both of the parties to the action and observed the demeanor and manner of giving the testimony. He was in a better position to judge as between the parties testifying. We do observe evidence in the record which is inconsistent with the trial court’s conclusion, but it is doubtless true that in many contested cases there is evidence inconsistent with the contentions of the successful party. The plaintiff now urges as an uncontradicted fact that the plaintiff himself placed the deed in the safe after he had exhibited it to the defendant. Plaintiff’s testimony in this regard is contradicted by the defendant, who testified that after the deed was delivered to her she placed the deed in the safe. The safe was jointly used by plaintiff and defendant, and was a safe to which each of them had access. The plaintiff strongly presents his case here upon the facts, but we cannot retry the issues of fact on plaintiff’s application for rehearing. We can examine the record and consider the facts and evidence presented to the trial court, and that we have carefully done. There was sharp conflict in the testimony; while one theory was contrary to the judgment rendered, the other theory supported it.

We cannot say that the findings and judgment of the trial court are against the clear weight of the evidence, and the petition for rehearing is denied.

CULLISON, Y. O. J., and SWINDALL, ANDREWS, McNBILL, OSBORN, and BAY-LESS, JJ., concur. RILEY, O. J., and BUSBY, J., absent.

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