Richardson v. Moyer

Per Curiam, The question whether it was the intention of the parties to abandon or surrender the paper signed by the defendant, when the paper signed by the plaintiff was executed and delivered, was necessarily a question of fact and had to be submitted to [178] the jury for their action. The learned court below very carefully and correctly instructed the jury that, if the first contract was abandoned when the second one was made, the plaintiff could not recover. The credibility of the witnesses was for the jury, and it was for them to determine how the disputed fact was, upon all the testimony on both sides, and the jury was properly charged upon this subject. In addition to the conflicting testimony of the parties upon the main contention, there was the undisputed fact that the first contract remained in the possession of the plaintiff, and was produced and given in evidence by her on the trial, and there was the further fact that several payments were made on it, one of which, it was testified, was made by the defendant on the day the papers were given. We do not see how this chief contention in the cause could have been taken from the jury, and they having found for the plaintiff, we must assume that the parties intended to, and did, in fact, keep alive and maintain both contracts as parts of the same transaction. This state of the facts disposes of all the questions raised by the several assignments of error. Judgment affirmed.