Brownlee v. Goldthait

Elliott, J. — Two questions are discussed by appellant’s counsel. The first question grows out of the action of the court in overruling appellant’s demurrer to the third paragraph of the reply of the appellees. The question which counsel discuss is interesting and important, but is not properly before us. The record does not show any excepti on to the ruling upon the demurrer. The remaining question is presented by the ruling refusing appellant a new trial. The single question which counsel argue, in considering the assignment of error based upon the overruling of the appellant’s motion for a new trial is, that the appellees recovered a larger sum than they were entitled to under the evidence. The position of appellant is, that credits .ought to have been applied upon the note sued on in the first paragraph of the complaint, and not upon the account for goods sold and delivered, upon which the second is based. We have looked through the evidence and find none showing that the appellant made any application of the payments, and the creditor had, therefore, the right to make the application. A long list of figures is presented to us, by counsel, and a calculation made thereon, showing, upon the theory assumed by counsel, an error iu the amount of recovery of something more than seventy dollars; but as all the items therein [482] Stated were fully before the jury, and have been passed Upon both by the jury and the trial court, we can not disturb the conclusion declared in the verdict and judgment. The correctness of the claims of payment and of set-off asserted by the appellant were determined against him by the jury who were charged with the special duty of truly finding the facts, and whose means and opportunity of arriving at a correct result upon all issues of fact are much superior to any we can possibly have. Wo have confined our investigation-to the two questions discussed in appellant’s brief, for the reason that we deem all others waived. Judgment affirmed.