De Forrest v. Oder

Mr. Chief Justice Walker delivered the opinion of the Court: It is first insisted, that the finding of the court below is manifestly against the evidence, and the judgment should for that reason be reversed. After a careful examination of the testimony, we fail to arrive at that conclusion. There is no doubt some conflict, and there may be some doubt of the correctness of the finding, but we are inclined to the opinion that the evidence sustains the verdict. This court will not reverse, because the verdict is against the evidence, unless it is so clearly so that we must believe that the result would and ought to be different, on another trial by a jury. When we can see that the finding should have been different, and that a new trial would have that result, the court will not hesitate to reverse for that reason. But, when we have examined all of the evidence, and fail to see that the verdict is wrong, and only have doubts as to its correctness, the court never interferes. And in this case, that evidence, at most, but creates doubt. It is again urged, that the court erred in sustaining a demurrer to appellant’s third plea. It averred that appellee was before, and at the time when the suit was brought, indebted to appellant in the sum of one thousand dollars for pasturage, before that time, furnished at appellee’s request, and also for the price and value of five mules, belonging to appellant, and placed in the hands of appellee for a consideration paid, and to be paid, to be properly kept and eared for, but which were permitted by appellee, in disregard of his duty, and by reason of his negligence, to stray off, and were thereby lost to appellant, which sum of money he offers to set off against the demand of appellee. This plea is substantially defective in several particulars. It is bad for uncertainty. There is no averment of what is meant by pasturage. Whether for horses, cattle, mules, sheep or hogs. Whether it was still due and owing when the plea was filed or not does not appear, and there is no averment that it was still due and unpaid. From aught that appears, the plea might be true, and still appellee may have paid the money after the suit was brought and before the plea was filed. Again, it does not appear what portion of the thousand dollars was due for pasturage and what for the loss of the mules. And the plea is defective in offering to set off unliquidated damages, growing out of a breach of contract, without showing that it grew out of and was a part of the contract sued upon. Such damages arising out of covenants, contracts or torts not connected with the subject matter of the suit, do not constitute' . the subject matter of a set-off, under our statute. Hawks v. Sands, 3 Gilm. 227. There is no averment in this plea, that the damages claimed for the loss of the mules were in any way'connected with the matter for which appellee had brought his suit. There was therefore no error in sustaining the demurrer to this plea, and the judgment of the court below must be affirmed. Judgment ajfvrmed.