Chandler v. Meckling

22 Tex. 36 | Tex. | 1858

Roberts, J.

The exceptions taken to the petition and to the admissibility of plaintiff’s evidence, are not deemed to be tenable. A more serious question is, whether the court below should not have granted the motion for new trial, on the ground that the verdict was contrary to the evidence.

The rules laid down for the government of the Supreme Court, on the subject of new trials for this ground, are not applicable, in all their strictness, to the action of the District Court. That court can and should wield a more liberal discretion in the exercise of this power, for the purpose of securing the substantial rights of the parties, than this court. The rules of this court are founded upon the assumption that the District Court has acted, and will act, upon such liberal discretion. One of the substantial rights of the party defendant, when he takes the proper steps to demand it, is, that the facts alleged as a ground of action against him, should be established by proof reasonably sufficient. When there is proof reasonably sufficient, but which is opposed by evidence leading to a contrary conclusion, there is then presented a case of conflicting evidence, in which it is difficult, and often impracticable, for the court to interfere. Hence the rules (governing all comts) in relation to evidence greatly conflicting, have been established. The same difficulty, however, does not exist, where there is a deficiency in the proof adduced to establish the cause of action. It will not do for the court to say, that there is some evidence in support of the verdict, and it must stand. In such case, the true question must be, is .the evidence reasonably sufficient to satisfy the mind of the truth of the allegations ?

Doubts as to this point, if they exist, may be thrown in favor of the verdict. But when it is clear that the evidence adduced is not reasonably sufficient, (under all the circumstances of the case,) to satisfy the mind of the truth of the allegations, then the verdict should be set aside, on the proper motion being made. Where it is made to appear, or is obvious to this court, that such rule has not been observed by the District Court, it then becomes a proper subject of revision by the Supreme Court.

We think it clear that the evidence was not reasonably sufficient in this case.

The plaintiff’s claim embraces two items of account, to wit : money paid by plaintiff, Meckling, to Sweet & Co., at request of Yandever, $1,000 ; sale to Yandever, on special contract, of his partnership interest in the sutler’s store, $860; amounting in gross to the sum of $1,860.

The admitted credits are $1,250, which reduce the claim, as presented to the administrator, to the sum of $610, for which a verdict was rendered for plaintiff, Meckling.

The evidence adduced to obtain this verdict was the deposition of George Martin, to the effect that at San Antonio, some time in the latter part of 1854, or early part of 1855, he presented to Yandever, a draft drawn on him for §1,000, (which is one of the items of credit,) in favor of himself, Martin, which was accepted; that then and there he heard Yandever say that “ there had been a mercantile transaction between himself and “Meckling, and that he was indebted to Meckling something “over eighteen hundred dollars ; ” and further, that the amount of this draft then accepted, (§1,000,) “was all that was due or “payable, at that time, of the eighteen hundred and odd dollars.”

The considerations that arise upon and in connection with this evidence, are:

1st. The transactions involved in this suit must have transpired at a distance from the trial, the venue having been changed from Burnett county, where the administrator was sued; and the witness, being examined by interrogatories, was not present in court.

2d. The witness detailed the admissions of a deceased party, made in conversation nearly four years before the trial, concerning matters that the witness could have had no particular interest in noticing or recollecting minutely.

3d. The testimony does not prove the indebtedness of Yandever to have been §1,860, as alleged, but only “something over” §1,800. How much over, does this proof establish ? It proves it to be ninety-nine dollars over as readily as one dollar over the §1,800. There can be no reason why “ something over eighteen hundred,” should be taken to mean exactly eighteen hundred and sixty; nor were the jury warranted in such conclusions by any other evidence in the case.

4th. The testimony shows that this indebtedness arose out of a mercantile transaction. The demand alleged comprises two distinct transactions, one of which might appropriately be styled a mercantile transaction; the other might, or might not. But apart from this discrepancy between the allegations and the evidence, this description of the indebtedness of Yandever, is general enough to apply to any one of any number of mercantile transactions that may be imagined, as w'ell as to the two specified in the account, or either of them.

5th. The testimony shows that the claim for the balance of the indebtedness, after deducting the accepted order of $1,000, was not barred by the statute of limitations; but in doing this, it fails to show that such balance was due and payable, even at the date of the suit. The witness says that he, Vandever, said “that (the $1,000) was all that was due and payable at that “time, of this eighteen hundred and odd'dollars.” When was it due—before or after suit brought? It certainly was not due until some time after the date of this conversation. How long after—one month, one year, or five years ? There is no evidence from which any inference can be drawn, that the time had elapsed when the suit was brought.

Added to these is the important consideration, that this is a suit against a deceased person’s estate, defended by an administrator. Usually the force of evidence, though slight, is greatly increased by the failure of the opposite party to rebut it, where it is obvious that the means to do so are readily accessible to the party. An administrator is often at fault in the want of a knowledge of facts necessary to make a full defence, and hence, this presumption does not hold so strongly against him as against his intestate, if living. In such case, however, even where the parties are all living, a primd facie case must be made out, before the opposite party can be called on to oppose it with rebutting evidence.

If this claim is a just one, the very nature of the items shows a strong probability, that it will not be difficult for the plaintiff to strengthen and give pertinent direction to this evidence, by additional facts, so as to secure a recovery of his debt.

Under all these considerations, we have no hesitation in expressing the opinion, that the evidence was clearly not sufficient to support the verdict, and that the court below should have granted a new trial, on the ground that “ the verdict was contrary to the law and evidence.” Judgment is reversed and cause remanded.

Reversed and remanded.