Bockes, J. The learned judge who tried the cause at the circuit, came to the conclusion, after careful consideration of the case on all the proof, that the verdict was 108 manifestly against the weight of evidence.
He says: “The weight of evidence is so preponderating in favor of the defendant, that the conclusion is irresistible that the jury either fell into some mistake and adopted some mistaken theory, or else were governed by prejudice in finding for the plaintiff.” In this conclusion we are of the opinion he was right. The plaintiff’s case rested entirely on his own testimony. He was not willing to testify that the money passed as a loan, although he says, in substance, that he expected it to be returned.
If, however, he parted with it under this expectation, and it was so accepted by the defendant, it would in law amount to a loan. But the testimony of the plaintiff is of doubtful import. He does not make it clear that the money was to be returned to him. He leaves the subject in doubt and uncertainty. Many of his statements, too, are plainly partial and colored.
As was well said by the learned judge, in his opinion on the motion, 1 ‘ Taking his evidence alone, and giving it full credit, there would be great doubt what the truth of the matter was.” On his own evidence a jury might well have found that a right of recovery was not established. A party may now state his own case, and when he is conversant with all the facts, he ought to be able to make his right of action entirely plain. The plaintiff’s case was not free from doubt, on his own testimony.
But it wholly failed, for want of preponderance of proof, when considered with the evidence on the part of the defence. Two witnesses, who were conversant with all the facts—the defendant and the plaintiff’s former wife — state distinctly and unequivocally, that the money passed as a payment. They are clear, exact and circum- • stantial in their evidence. Unlike the plaintiff’s case on his testimony, their case on their evidence is not in doubt.
They both testify to the agreement to purchase the house and lot, state the price agreed to be paid, and say distinctly that the money 109 claimed by the plaintiff was delivered to the defendant, and was accepted by him in part payment. The preponderance of evidence is very manifestly with the defendant.
On the case made at the trial the verdict is clearly against conscience, and the judge was right in setting it aside and ordering a new trial; and he would have been justified in so doing without imposing terms, in a case of such manifest injustice. [Third Department, Generad Term, at Albany, March 12, 1874.
The order appealed from must be affirmed, with $10 costs ; and the defendant must have twenty days after service of a copy of the order of affirmance, within which to comply with the condition of the order appealed from.
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