Carpenter v. Ambroson

Walker, J. The first assignment of error questions the correctness of the decision of the court below, in refusing to permit the witness Daniel Carpenter to answer this question: “ What arrangement was made between the plaintiff and yourself, at or before the time you started for California, about the note you held against him ?” This question is objectionable in form, as it assumes that some arrangement had been made when none had been shown. It does not appear that any arrangement which might have been made by them had any relevancy to the issue the jury were then trying. If it was to show the agency of defendant for the collection of the note, plaintiff had already admitted that fact, and this witness so testified, and that he notified plaintiff before he left for California. We are of the opinion that there was no error in refusing to permit the witness to answer the question. It was again urged that the court erred in not permitting the witness to testify to all that was said at the time that he notified plaintiff that defendant was witness’ agent. We are at a loss to imagine in what manner a conversation between witness and plaintiff, long before the occurrence of the matters in dispute, could tend in any way to shed light on those transactions. There was no error in excluding the evidence. It was urged that the verdict was not warranted by the evidence. The evidence was conflicting, and it was for the jury to determine which was entitled to the most weight. The evidence showed that appellant got of appellee a yoke of cattle, at twenty-eight dollars, hay amounting to six dollars, and appellee broke prairie for appellant, amounting to ten dollars and sixty-three cents, making, in all, forty-four dollars and sixty-three cents. The evidence showed that the oxen were got in the spring of 1852, and if the other articles were obtained about the same time, there would be over three years from the time when they were obtained before judgment was recovered. It was agreed by all parties that the price of these articles was to be applied on the notes which Daniel Carpenter held against appellee, and if the amount was not indorsed or allowed in that manner, the appellee would be entitled to recover interest from the time it should have been so applied. The jury have, by their verdict, found that such application was not made, and the interest on the amount would make fully as much or more than they find by their verdict. We think the verdict is sustained by the evidence. We are unable to perceive any objections to the instructions given for the plaintiff below. They seem to contain the law as applicable to the evidence before the jury. Upon the whole record, we are unable to perceive any error for which this judgment should be reversed, and it is, therefore, affirmed. . Judgment affirmed.