Kemp v. Slocum

Epperson, C. Plaintiff sued on an open book account, and defendant pleaded a counterclaim. The defendant appeals from a judgment in favor of plaintiff. No important question is presented. One instruction objected to is a‘ statement of defendant’s counterclaim. An examination of the record shows that the instruction and the allegations of the counterclaim are in substantially the same language. Another instruction complained of is as. follows: “The jury are instructed that the testimony of one credible witness is entitled to more [441] weight than the testimony of many others, if, as to those other witnesses, the jury have reason to believe, and do believe, from the evidence and all the facts before them, that such other witnesses have knowingly testified untruthfully, and are not corroborated by other credible witnesses, or by circumstances proved in the case. It is the duty of the jury to consider the whole of the evidence and to render their verdict in accordance with the weight of all the evidence in the case.” The giving of a similar instruction was held error in La Bonty v. Lundgren, 31 Neb. 419, because it was inapplicable to the evidence. In the case at bar, there Avas a conflict in the, testimony upon questions of fact of which the different Avitnesses had positive information. The instruction was, therefore applicable and proper. The other rulings objected to went to the admission of evidence, but upon examination of the record we find no reversible error. The verdict was sustained by the evidence, and we recommend that the judgment of the district court be affirmed. Ames and Oldham, CC., concur. By the Court: For the reasons stated in the foregoing Opinion, the judgment of the district court is Affirmed.