Gaines v. Forcheimer & Bros.

DuPONT, C. J., delivered the opinion of the court. The appellees brought suit in the Circuit Court of Santa Rosa county, against the appellant, a maker of a promissory note. The defence was payment and set off. Upon the trial, the jury gave a verdict for the plaintiff, for the sum of $111 10-00. At the same term of the court, the defendant moved for a new trial, supported by affidavit, on the ground of newly discovered evidence, which was granted by the court and the cause contined -to the next term. At the ensuing term, the cause was again continued on the showing of the defendant, and at the following term, a trial was [268] had. and. the jury returned a verdict in favor of the plaintiffs, for the sum of $181 91-00. The defendant again moved for a new trial, on the grounds that the verdict was contrary to the weight of evidence, and that it was contrary to the law as laid down by the Court. This motion for a second new trial was refused by the court, and from that ruling, the appeal was taken and is now brought to this court for our adjudication. We have carefully examined the record in this case, and can discover no good reason for disturbing the verdict of the jury. With reference to the first ground of error assigned, to wit: that the verdict was contrary to the weight of evidence, it is well settled that the verdict will not be set aside as against evidence, where there has been evidence on both sides, and no rule of law violated, nor manifest injustice done, although there may appear to have been a preponderemos of evidence against the verdict. (1 Grah. and Wat. on N. T., 380.) In reviewing the testimony in the case, we are clearly of opinion that instead of the preponderance having been against the verdict, it was clearly in its favor. The verdict seems to have allowed to the defendant full credit for the payment that had been made on the note; and as to the receipt for notes and due bills, given by the plaintiffs to the defendant, we think the jury were correct in not regarding it as evidence in the case, there being nothing on its face to show the application to be be made of the proceeds when collected, and a total failure in the evidence going to prove any responsibility on the same, over to the defendant. We are at a loss to discover any ground for the second 'error assigned, to wit: that “ the verdict was against the law, as laid down by the Oowrt.” There is nothing in the bill of exceptions to show .how the Judge below laid down the law, and even if there were, we are satisfied that the verdict violated no principle of law. We recógnize th [269] general rule that if the finding of the jury be clearly against law, the verdict will be set aside and a new trial granted, (1 Grah. and Wat. on N. T., 327,) but such is not the position of the verdict in this case, and we therefore overrule the assignment. It is therefore ordered that the judgment of the court below be affirmed with costs.