Turley v. Ingram

Cooper, L, delivered the opinion of the court. Unless the defendant was bound by the note sued on, the debt due to the plaintiff was barred by the Statute of Limitations, and no recovery could have been had. Whether the plaintiff could recover in whole or in part on the note depended on three questions: 1. Did E. P. Turley, as agent of Ingram in winding up the affairs of Ingrain and Turley, have authority to bind Ingram by the execution of a note for the debts of that firm ? If he did have such authority the plaintiff was entitled to recover so much of the note as was given for debts not barred by limitation at the time of its execution. 2. Did E. P. Turley have authority, as the agent of Ingram in conducting the firm of Ingram & Co., to execute a note for the debt due by Ingram & Co. ? If he had such authority, but did not have authority to give a note for the debt due by Ingram & Turley, then the plaintiff was entitled to recover on t-he note so much as was due him by the firm of Ingram & Co. 3. Had Ingram ratified the act of Turley in executing the note sued on? By the first verdict the jury responded in the affirmative to the first and third interrogatories. This verdict was set aside by the court. This verdict we think was contrary to the evidence and thé instructions of the court, and the court rightly refused to permit it to stand. It is evident that the jury which returned the second verdict answered the first and third interrogatories in the negative and the second in the affirmative. We cannot say that this idea was opposed by the evidence. This verdict was for less than the sum which the plaintiff’s evi [555] dence showed was due by Ingram & Co., to him, and the inquiry is whether the jury was or might have been controlled by erroneous instructions given for defendant, or whether plaintiff was refused instructions he should have received. Looking to the testimony adduced we see that the defendant claimed credits against plaintiff’s demand: 1. For fees earned by the plaintiff in acting as deputy sheriff while in their employment. 2. For extra horse feed furnished to him by defendant. The plaintiff testified that he had paid the firm all fees received by him as deputy sheriff; the defendant introduced evidence tending to prove the contrary. The court charged the jury that the defendant must be allowed for all such fees received by the plaintiff, without qualifying this charge by instructing the jury that it was to determine between the witnesses as to whether in fact these fees had already been accounted for, and if such was the fact, then the defendant having already had the fees could not again have credit therefor. As given, the instruction in effect told the jury to find the fact to be as testified by the witnesses for the defendant, and was a charge on the weight of evidence. The plaintiff asked the court to instruct the jury that the Statute of Limitations applied to set-off as to the debt sued on, which instruction was refused. This was error. If the plaintiff’s demand against Ingram & Turley was barred by limitation, so also was theirs against him for the fees received by him and for the horse feed furnished. For these errors, the judgment will be reversed and a new trial awarded. Footnotes [1] If the jury find against the great preponderance of evidence a new trial will be granted. Sims v. McIntyre, 8 S. & M. 324; McQueen v. Bostwiek, 12 S. & M. 604. [543] The high court will not grant a new trial, upon the ground that the evidence does not sustain the verdict, except in a clear case; but where instructions were given in the court below, and the jury have clearly mistaken the law, a new trial will be granted. Leflore v. Justice, 1 S. & M. 381. If the jury upon questions of fact submitted to them find a verdict which is contrary to law and evidence, the court will grant a new trial. Tunstall v. Walker, 2 S. & M. 638. But it will be granted where the evidence considered with reference to the issue submitted to the jury does not sustain the verdict. Otey v. McAfee, 38 Miss. 348. A new trial will be granted where there is no evidence to sustain the verdict. Crocket v. Young, 1 S. & M. 241. A verdict will be set aside on consideration of the facts alone if they fail to sustain it. Monroe v. State, 71 Miss. 196, 13 So. 884; Harris v. State, 71 Miss. 462, 14 So. 266. In a civil case, where there is such a conflict of evidence that the mind cannot repose with entire confidence upon a conclusion in favor of either party, a verdict will not be disturbed in this court, no error of law having intervened. Bank v. Moss, 63 Miss. 74. A finding on controverted facts, though it may be unsatisfactory, will not be disturbed, if it cannot be said that there is no evidence to support it. Bail-road Co. ■». Doggett, 67 Miss. 250, 7 So. 278. A verdict will not be disturbed unless it is manifest from the whole record that it is clearly wrong, or unless misdirection or other apparent error may have produced it. MeAlexander v. Puryear, 48 Miss. 420; Buckingham v. Walker, 48 Miss. 609. A decree manifestly against the evidence by deposition on which it is based will be reversed on appeal. Mississippi C'otton-Oil Co. v. Starling-Smith Co., 23 So. 648. Where, having been directed to find for plaintiff, a jury assessed his damages at $100, the full amount asked, the verdict will be set aside where the evidence as to the value of the two horses killed for which damages were awarded is that they were worth from $30 to $50, and in the same action the jury found the value, of twenty-six other horses of the same class at $900, since the finding is evidently the result of a mistake as to the effect of the judge’s instruction. V. S. & P. B. B. Co. v. Lawrence, 78 Miss. 86, 28 So. 826. [544] The verdict of the jury will not be reversed, on account of being contrary to the evidence, unless it most convincingly and indubitably appears to be so. King v. Rowan, 34 So. 325. [2] The court has not the power to charge on the weight of evidence; yet it has the power to judge of, and charge upon, the tendency of evidence, and the exercise of this power is essential in the administration of justice. It is a power to be exercised with the greatest caution, and only where there is no room for doubt, but when the evidence wholly fails to make out the plaintiff’s ease, and when it does not tend in any justly legal view to establish it, it is the duty of the court to so instruct the jury. Garnett v. Kirkman, 33 Miss. 389; Perry v. Clark, 5 How. 495; Frizell v. White, 5 Cush. 198; Carmichael v. Bank of Pennsylvania, 4 How. 567; Stephenson v. MeReary, 12-S. & M. 9; Jennings v. Thomas, 13 S. & M. 617; Dunlap v. Hearn, 37 Miss. 471; Fairly v. Fairly, 38 Miss. 280; Gilliam v. Moore, 10 S. & M. 130. Instructions that single out and emphasize parts of the testimony are erroneous as being on the weight of evidence. Levy v. Holberg, 71 Mise. 66, 14 So. 537; Prine v. State, 73 Miss. 838, 19 So. 711. Instructions for defendant which single out facts in evidence and inform ihe jury that they alone are not enough to warrant conviction are erroneous because they are on the weight of evidence. Burt v. State, 72 Miss. 408, 16 So. 342. But an instruction that “ a confession freely and voluntarily made is among ihe best evidence known to the law, and that if the jury believe from the evidence that the defendant made such a confession, then they are authorized to consider it in connection with the other evidence,” etc., is reversible error, such an instruction being upon the weight of evidence and a clear invasion of the province of the jury. Thompson v. State, 73 Miss. 584, 19 So. 204. On the trial of a claimant’s issue an instruction which enumerates certain facts and announces that they are to be taken into consideration by the jury “ as tending to show that the property did belong to defendant ” is erroneous, because on the weight of evidence. French v. Sale, 63 Miss. 386. And so an instruction that certain facts stated in the instructions are circumstances “ indicating ” a fraudulent intent, is erroneous, as being on the weight of the evidence. Ladnier v. Ladnier, 64 Miss. 368, 1 So. 492. In an instruction in a criminal case, instead of referring to certain cir [545] cumstances as “ evidence ” of defendant’s guilt, it is better to use the language “ tended to show the prisoner’s guilt.” Nelms v. State, 58 Miss. 362. The jury, not the court, must determine the relative value of admissions. Accordingly, an instruction which declares that admissions, if fully and deliberately made to a disinterested person, are of weight, but that casual declarations made in idle conversation do not deserve much consideration is erroneous as being on the weight of evidence. Johnson v. Stone, 69 Miss. 826, 13 So. 858. Instruction as to where the burden of proof lies, and directing a verdict according to the preponderance of the evidence, is proper. Meyer v. Blakemore, 54 Miss. 570; Lockhart v. Camfield, 48 Miss. 470. Though the court may not charge upon the weight of evidence, it is not error to assume as true a fact which is fully established and as to which there is no controversy. Carberry v. Burns, 68 Miss. 573, 9 So. 290; Railway Co. v. Phillips, 70 Miss. 14, 11 So. 602; see also, Odeneal v. Henry, 70 Miss. 172, 12 So. 154; Patrick v. Carr, 50 Miss. 199; Lockhart v. Camfield, 48 Miss. 470; Landrum v. State, 63 Miss. 107; Meyer v. Blakemore, 54 Miss. 570; Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; Dawson v. State, 62 Miss. 241. Where the defense to an action against the administrator of the maker of a note was non est facUm it was error to instruct that the evidence of experts who had testified as to the maker’s signature was “ intrinsically weak, and ought to be received and weighed by the jury with great caution,” as on the weight of the testimony. Coleman v. Adair, 75 Miss. 660, 23 So. 369. What weight is to be given testimony and what inferences can be logically deduced from it are questions submitted, under the statute, solely to the judgment of the jury. Maston v. State, 83 Miss. 647, 36 So. 70. [3] Where there is evidence tending to establish a material fact it is error to refuse instructions as to its effect, although the weight of evidence may tend to disprove it. Levy v. Gray, 56 Miss. 318; Nichols v. State, 46 Miss. 284; Hursey v. Hassam, 45 Miss. 133. Defendant held to have each of his defenses fairly presented and submitted to the jury under proper instructions. Crow v. Burgin, 38 So. 625.