Godfrey v. Johnston

Mullix, J. The motion for a nonsuit was properly denied. The plaintiff, before resting, had proved, by Johnston and his own oath, that a contract for the carriage of his goods had been made with defendants, with their knowledge and assent. This evidence most clearly authorized a. verdict for the paintiff. Concede that the evidence of Johnston was not as clear and conclusive as it might be on the question of assent, yet it was some evidence on that point. It was, therefore, the duty of the court to submit it to the jury. There was no .question made, on the trial, as to the admission or rejection of evidence, nor as to the charge of the court. We are called upon to reverse the judgment, because the jury has come, in the opinion of counsel, to an erroneous conclusion on the questions of fact. It cannot require the citation of authorities to show that we possess no such [559] powers. Errors of this kind must be corrected in the General Term; and if that court refuses relief, the injured party is remediless. When the General Term reverses a judgment for error of fact, this court will look into the evidence, to see whether there is any evidence to support the findings of the General Term. If there is not, the judgment will be reversed: if there is, it will be affirmed. (Davis v. Wycoff, 18 N. Y., 45; Griffin v. Marquardt, 17 id., 28). This is the only case in which this court can enter into an investigation of the facts appearing on the trial. It is possible that if we had been sitting in the place of the jury, we might have discredited the plaintiff’s evidence, in view of the positive denial of the defendants, and the facts proved by their other witness. But the law has made the jury the tribunals to pass upon the facts, and not us. And as there must be a power, somewhere, finally to dispose of disputed questions of fact, it has been left, wisely or unwisely,, with the jury—with a limited power of review in the Special and General Terms. ° In thus holding, we only re-affirm a rule laid down at the organization of the court, and adhered to ever since. The application to the General Term for a new trial, on the ground of surprise, was addressed to the discretion of the court, and is not appealable. The judgment must be affirmed, with costs. Weight, J. It maybe that the weight of evidence was in favor of the defendants, and that injustice was done to them by the verdict in the case; but this court is not the tribunal for the correction of errors of the jury. The action was for the breach of an agreement by the defendants, to transport, from Geneva to the plaintiff’s residence in the State of Virginia, certain household goods and other property of the plaintiff. The defendants were copartners engaged in the transportation of passengers, merchandise and freight, in steam vessels upon Seneca lake, under the name and style of the Seneca Lake Steamboat Company, and of John It. Johnston & Co. Johnston, one of [560] the partners, resided at Geneva, and acted as agént and manager of the affairs of the company. In the fall of 1852, the plaintiff was about removing to Virginia, and Johnston contracted with him, as the agent of the defendants, to transport his goods. The company owned the propeller “Reynolds/’ and the goods were placed on "board of her -at Geneva for transportation; and she proceeded on her journey to ¡New York. • She leaked badly before she started, and was so unseaworthy when she reached ¡New York, that Johnston, who was there, doubted the propriety of her going on, and chartered a schooner, and had her freight taken out and put on board the schooner.' The plaintiff’s property, when transhipped, was in a very wet and damaged condition, and some of it entirely destroyed, and in that state it was delivered to him in Virginia. The amount of damages by loss'and water was $1,850. The contract 'made by Johnston with the plaiutiff was not within the scope of the partnership business, and hence it was necessary to show that it was entered into with the assent of the other defendants. Whether it was authorized by the defendants, was a question of fact, in respect to which the evidence was conflicting. Johnston’s testimony tended to show that before closing the' contract, he submitted it to his associates, at a meeting held by them, and they assented to it; whilst the testimony of two of the defendants, Dox and Watson, who were at the meeting, tended to show that there was no assent, but, on the contrary, one or more of the associates "expressely dissented. I think the weight of evidence was against the position that there was an .assent on the part of "the déíend7 ants; but there was certainly some evidence tending to show such assent, and the judge would not have, been justified in withholding this disputed question of fact from the jury " ■ There was but a single exception in" the cáse," viz. :" to refusing a nonsuit. The judge properly refused- it.; and the judgment of. the Supreme Court should be affirméd."' All concur. . Judgment affirmed. ' .