Otey v. McAfee's Adm'r

Harris, J., delivered the opinion of the court. The defendant in error brought his action of assumpsit, in the Circuit Court of Warren county, to recover the sum of sixteen hundred dollars, for so much money had and received by plaintiff in error, for his use, and for so much money paid, laid out, and expended. To this complaint, the plaintiff in error filed his answer, relying on the Statute of Limitations, former recovery, and a general denial. On all of which there was issue taken. More than three years after the original complaint was filed, an amended declaration was filed, as admitted in argument, termed in this record an amendment of the writ. Also, a bill of particulars, specifying that the sum demanded is for the price of two negro slaves, received by plaintiff in error, worth $1600, and alleged, in the bill of particulars, to have been sold by plaintiff in error. Upon these issues, a jury and verdict for defendant in error, bills of exception, and motion for a new trial, refusal of motion, and exception thereto, with all the evidence in the cause, appear on the record. [353] The defendant in error died pending the suit, and there was a revivor against his representative. The first error assigned, is that the court excluded the testimony of the plaintiff in error on the trial, — offered to discharge himself from liability to the estate of the decedent, plaintiff below. In this there was no error, according to the construction placed upon our late act, on this subject, by several decisions of this court. It is next urged that the court erred in giving instructions asked by the defendant in error. It will not be necessary to consider the instruction objected to, in the view we take of this case; more especially as the objection is one which goes rather to the accuracy of the language employed in the instruction, than to the real intent; and this uncertainty will doubtless be corrected on another trial. The last assignment of error relates to the refusal of the court to grant the motion for a new trial. With a full recognition of the stringent rules heretofore adopted, and uniformly enforced, in relation to the disturbance of the action of the court and jury below, upon questions of fact, we are nevertheless constrained to say, that this verdict is manifestly wrong, upon a thorough and careful review of the evidence, as presented in this record. Indeed we are unable to perceive in the record, that it has the shadow of support, unless the statements of the plaintiff below, made in his amended bill, filed in the United States District Court for the Southern District of Mississippi (which was afterwards, on demurrer pending, dismissed by himself), are to override the direct testimony of all the witnesses, the statements, acts, and conduct of the defendant in error himself, as well as all the circumstances in proof. And even then, the verdict in this case, upon the issues here presented, could not be sustained, because the statements of that amended bill would establish a subsisting special agreement between these parties, not sued on in this action, wholly at war with his original and amended complaint, and decisive against him in this case. We forbear from further comment on the evidence, as the case will be remanded for a new trial in the court below, where addh354 tional or explanatoi'y evidence may be introduced to obviate the difficulties presented in this record. Let the judgment be reversed, cause remanded, and a venire de novo awarded.