Mitchell v. Lindley

Hart, J. (after stating the facts). It is first contended by counsel for appellant that the court erred in excluding from the jury the testimony of Holt with regard to the financial condition of J. C. Mitchell, deceased, as follows: “Was his finances such, or his accumulations such, that he could carry as much as $1,500 in cash,, at anytime?” A. “I think not.” Counsel contend that the above testimony was competent as tending to show that the financial condition of J. C. Mitchell was such that he was not likely to have had $1,500 at the time he purchased the farm. ! We can not agree with counsel in this contention. The cashier was permitted to state the amount of money J. C. Mitchell had on deposit in the bank during the year 1919, the amount he drew out, and the amount he had on hand on the day he purchased the farm. This was all that the witness knew about the financial condition of J. C. Mitchell. The testimony was conflicting as to whether or not he had the money with which to pay the whole' purchase price of the farm, and it was a question for the jury to determine whether or not he borrowed the $1,500 from his father with which to pay a part of the purchase price of the farm. The witness could only state the facts within his knowledge relating to the financial condition of J. C. Mitchell and his ability to pay cash for the farm at the time he purchased it. It would not be competent for him to give his opinion as to his ability to pay cash' for the farm. That was the precise question for the jury to determine. To allow the witness to express his opinion as to whether or not J. C. Mitchell had $1,500 in cash would be to allow the witness to usurp the functions of the jury. The court allowed the witness to testify as to all matters within his knowledge relating to the financial condition of J. C. Mitchell and properly excluded from the jury the opinion of the witness with regard thereto. It is also insisted by counsel for appellant that the evidence is not sufficient to justify the verdict. We can not agree with counsel in this contention. Appellant did not introduce in evidence any note or other instrument of writing signed by J. C. Mitchell in which he promised to pay appellant $1,500 or any other sum. The burden was upon appellant to prove his debt. He only did this by the testimony of witnesses who said that J. C. Mitchell told them that he had borrowed $1,500 from his father with which to pay for the land in question. On the other hand,two witnesses for appellee testified that appellant had admitted to them that his son had paid for the land with his .own money. Therefore, the evidence was sufficient to support the verdict, and the judgment must be affirmed.