Gordon & Co. v. Olliff

Atkinson, Justice. Gordon & Co. brought suit against J. R. and J. W. Olliff, administrators of W. W. Olliff, upon a promissory note given by W. W. Olliff to W .W. Gordon & Co., dated February 25th, 1892, for the principal sum of $3,198.67, with interest after maturity at 8fo per annum, having a credit, dated July 24th, 1893, of $2,758.80. There was a plea of the general issue, plea of payment, and a plea of recoupment. Under the view we take of the present case, it is only necessary to consider the plea of payment. The issues made in this case have been twice presented to a jury, and in both instances the finding has been adverse to the plaintiffs. Upon their motion, the first verdict was set aside, and a new trial awarded. The trial judge refused to set aside the second verdict, and error is assigned upon that refusal. Upon the trial, touching the subject of payment, one of the defendants testified to the effect that ~W. W. Olliff was his father; that his father was the maker of the promissory note sued upon; that after the death of his father, he, witness, went to the office of the plaintiffs and in the course of a business conversation relating to matters pending between himself individually and the plaintiffs, [585] W. ~W. Gordon, a member of the plaintiffs’ firm, complained very bitterly of tbe failure of tbe witness’s father to comply with certain engagements into which the senior Olliff had entered with the plaintiffs; that thereupon he «aid to said Gordon: “If my father owes you anything, you ■can take it out of the account of J. ~W. Olliff & Oo.”; and ■that thereupon he rejoined that the senior Olliff owed the •plaintiffs nothing. The plaintiffs, on the contrary, at the trial produced the note sued upon; and testifying on behalf ■of his firm, W. W. Gordon denied that any such conversation had taken place between himself and the witness, but stated that the amount which appeared to be due on the promissory note was still due and unpaid. Upon this conflict of evidence, the jury found in favor of the defendants. If this were a first motion by plaintiffs for a new trial, it is quite likely that this court would direct a new trial to be had, if, under the circumstances of this case, it had been refused by the trial judge; but it is a rule of universal acceptance in this court, that if there be any evidence to support a verdict rendered after the grant of one new trial to the same party, the discretion of the trial judge, with respect to those matters, will not be controlled. This is a salutary rule, which, though resulting sometimes in hardship to parties, is necessarily applied in order that there may be an end to litigation. The trial judge has a broad discretion with respect to these matters. The responsibility is with this court to see that the law is administered; the responsibility is with him to see that abstract justice is attained. He had before him both of the witnesses testifying to the conflicting statements which the jury undertook to reconcile upon some theory satisfactory to themselves. The solution by the jury of the problems submitted to them was approved by the trial judge; and while we are not prepared to say, looking at the record alone, that we would have given the case the same direction, we do not feel at liberty to control the discretion of the upright, able and [586] conservative judge who, presiding at the trial, afterwardsrefused a new trial upon the merits of the controversy. In accordance with the well established rule of law applied to like cases in this court, there being some evidence to support the verdict, the judgment of the trial judge must, stand. Judgment affirmed. All the Justices concurring.