[No. 9133.

Department One.

January 7, 1911.]

#### J. R. Pickle, *Appellant,*v. Lincoln County State Bank *et al., Respondents.*
      *1*

Fbaud — Evidence to Establish — Sufficiency. Fraud in an accounting and settlement, which resulted in the plaintiff’s execution of a note and mortgage for $11,000 for the balance found due, is not established by clear and convincing testimony, where the plaintiffs claimed that the note was represented to them as being drawn for $1,100, and they knew at the time that they were indebted in a much larger sum, and the evidence of the defendants indicates that the original accounting was correct.

Appeal from a judgment of the superior court for Lincoln county, Kennan, J., entered January 1910, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for an accounting.

Affirmed.

*John M. Gleeson*and *Joseph F. Morton,*for appellant.

*H. J. Hibschman*and *Sessions*$ *Warren,*for respondents.

Reported in 112 Pac. 654.

Per Curiam.

This is a bill in equity for an accounting. There was a judgment for the defendants. The plaintiff has appealed.

The complaint alleges, in substance, that the respondents induced the appellant to execute a note and mortgage for $11,000, upon the representation that they were drawn for $1,100, and that the latter amount represented the entire indebtedness of the appellant to the respondents. It appears from the evidence that there was a settlement between the parties on June 6, 1908. At that time the appellant and his wife executed their note and mortgage for $11,098. The appellant and his wife and the respondents on the same day signed a statement that they had settled and adjusted all their prior business transactions; that there was due *546from the appellant and his wife $11,093, and that they would execute their note and mortgage for that amount. Some time after the settlement was completed, a representative of the appellant demanded a further statement from the respondents, and they said to him that they would furnish it if the appellant and wife would produce their bank books and checks, and that if appellant and wife desired, they would have the bank books examined and an account made by an expert accountant.- This offer was not accepted. At a later date the books of the bank were examined by an attorney for. appellant, and he reported to appellant and wife that if there was any discrepancy in the accounts, it was in their favor.

One of the respondents, while being cross-examined, several times stated that there was a record of the matters which made up the $11,093, and,that with very little delay he could produce it. But appellant insisted ■ upon his stating the transactions without the aid of the books. The witness finally said: “I should think if you wished to know, I could get it for you in a minute.” He, however, did give a statement from memory which showed that, on the day of the settlement, the appellant and wife were owing a number of notes and an overdraft which, including a judgment against them and paid by the respondents, aggregated about $11,000. At the close of the case, the court said: “I am of the opinion that Mr. Pickle’s testimony is utterly unworthy of belief, and that there has been an utter failure to show any fraud in that settlement, and that the defendants are entitled to judgment.” It appears fróm the testimony of the appellant and wife that they knew that a much larger amount than $1,100 was due at the date of the settlement. Moreover, they knew that the respondents paid for them on that date in satisfaction of a judgment, and an attorney’s fee, the sum of $2,250. As the learned trial court aptly said, they knew that if the note and mortgage were drawn for $1,100, there was a mistake in their favor, and common honesty *547demanded that they should have had it corrected. Fraud is never presumed, but must be established by clear and convincing evidence. This is especially true where a party assails the integrity of written instruments. The trial court saw the witnesses, observed their manner while testifying, and arrived at the conclusion that the appellant failed to make a case which warranted an accounting. A careful reading of the evidence has failed to convince us that he was in error.

The judgment is affirmed.