Campbell v. Lynn & Co.

Paull, Judge : The plaintiff, James Campbell, brought his action of assumpsit in the court below, for services rendered the defendants for three years, amounting to $3,360, only claiming an actual balance, however, to be due him of $660. The declaration consists only of the common counts. Upon the trial, verdict and judgment were rendered for him, for the balance claimed and interest. The plaintiff gave evidence as stated in the first bill of exceptions, tending to prove that a contract was made by the defendants immediately before January 1, 1869, to pay him $1,000 per year, and to pay also his house rent amounting to $120 per year, for services as foreman in their iron foundry; -that said contract was to be kept secret, and that he had received thereon the sum of $2,-340 and his house rent during said three years. And the defendants gave evidence tending to prove that no such contract was ever made, but that the plaintiff was to serve the defendants as aforesaid for $15 per week and his house rent, for three years; that $15 per week and his house rent was paid during the said three years without any claim that any more was due him, un670 a few days before Jannary 1, 1872, when plaintiff claimed to D. Lynn, one of tbe defendants, that they were to pay him $1,000 per year and house rent, and that said Lynn denied, at that time, that there was any such understanding; and that no other claim was made by plaintiff until six months afterwards, when suit was brought. And, thereupon, the defendants offered to give evidence to the jury, “that the plaintiff was, during said three years, and ever since has been in very poor and very needy circumstances, pecuniarily,” but the court excluded the evidence, and defendants excepted. It will not be contended that this evidence was admissible with a view of impeaching the credibility of the plaintiff as a witness: Though it does not certainly appear from the bill of exceptions that he was introduced as a witness. Is the evidence pertinent to the inquiry, whether there was anything due to the plaintiff, being a question involved in the issue ? The answer to this inquiry may not be wholly free from doubt; but we do not think, under the evidence as contained in the bill of exceptions, a sufficient foundation has been laid for introducing the evidence proposed. As he never claimed, for nearly three years, that more was due him than’he had been receiving, the inference it is claimed, would be, that his necessities would have compelled him to make the claim earlier, if it had been founded in right. But the record shows that this contract, as to the amount, was to be kept secret, and it does not appear that all the evidence adduced is contained in the bill of exceptions. Although in needy circumstances, the inference proposed to bo drawn from the evidence to be introduced may not be the correct one, to-wit: That nothing was due him, or that full payment had been made to him. He may have had other and what he regarded as sufficient reasons for his silence up to the time of making his demand. Upon the whole we think the evidence was not admissible and that there was no error in excluding it from the julT- [671] Was there error in overruling defendants’ motion fora new trial, is the only remaining question? The motion" is made on the ground that the verdict is contrary to the evidence. The second bill of exceptions; setting forth the motion for a new trial contains a statement of the facts and evidence. It is unnecessary to give a particular analysis of the testimony, but merely observe that the contract for the payment of $1,000 per annum to plaintiff and the house rent is clearly proved by the .admission of one of the defendants, which he made by his own declaration to a witness, and which admission he does not deny, although himself examined in the case. It appears, however, that when the plaintiff subsequently claimed a larger amount than $15 per week, under a contract for $1,000 per annum, the defendant Lynn denied that such agreement was made. It is further shown that the plaintiff had said that he had settled with the defendants and left their employment. Upon a careful examination of this testimony and the evidence as it is presented in the record, we are unable to say that the judgment of the court, under the rules applicable to such motions, is erroneous. The rules of law" governing applications for new trials have been clearly settled by repeated adjudications. In the case of Patteson v. Ford, 2 Gratt., 18, it was held that the jury is the proper judge of the credibility of a witness. Consequently, when a motion for a new trial, based upon the ground that the verdict is contrary to the evidence, has been overruled by the court below, the ajipellate court will not reverse the judgment upon a certificate of the evidence. Contradictory or conflicting evidence, it has been alleged by the defendants in their petition, was given by the parties themselves, it would seem as witnesses, involving their credibility before the jury; and in such cases, according to the foregoing authority, an appellate court will not interfere. In Grayson’s case, 6 Gratt., 712, the principles applicable to new trials are again passed in review. And in [672] the case of Blosser v. Harshbarger, 21 Gratt., 214, it was 'held as follows, in accordance with previous cases : “A new trial asked on the ground that the verdict is contrary to the evidence, ought to be granted only in a case of plain deviation from right and justice; not in a doubtful case, merely because the court, if on the jury, would have given a different verdict.” Again, “When a case has been fairly submitted to a jury, and a verdict fairly rendered, it ought not to be interfered with by the court, unless manifest wrong and injustice has been done, or unless the. verdict is plainly not warranted by the facts proved.” And again, “Where some evidence has been given which tends to prove the fact in issue ; or the evidence consists of circumstances and presumptions, a new trial will not be granted, merely because the court, if upon the jury, would have given a different verdict. To warrant a new trial in such cases, the evidence should be plainly insufficient to warrant the finding of the jury. And this restriction applies a fortiori to an appellate court.” In the light of these decisions, and applying these principles to the evidence in the case before us, we do not think there was error in the judgment of the court below overruling the motion for a new trial, and the same is, therefore, affirmed, with costs and damages according to law to the appellee, and this opinion directed to be certified to the municipal court of Wheeling. Haymond, President, and Moore, Judge, concurred. Absent, Hoffman, Judge. JudgmeNt Affirmed and Suit Remanded.