Devencenzi v. Cassinelli, 28 Nev. 222

Devencenzi v. Cassinelli

28 Nev. 222 | Nev. | 1905

By the Court,

Norcross, J.:

This action was brought by respondent against appellant for the sum of $584, alleged to be a balance due from appellant to respondent upon an account stated between them on the 15th day of April, 1901; said account stated to be in full settlement of their accounts to the 1st day of May following. Respondent also alleged a further balance due him for labor and services rendered appellant from the said 1st day of May, 1901, to the 7th day of January, 1902, in the sum of $146.46; making a total indebtedness alleged to be due from appellant to respondent of $730.46. Appellant denied that an account was ever stated between himself and respondent, and denied that he was indebted to him in any sum whatever, but, upon the contrary, alleged that respondent was indebted to him in the sum of $1,012.37, and prayed judgment in his favor accordingly.

The case was tried with a jury, and a verdict rendered in plaintiff’s favor for the full amount prayed for in his com*231plaint, and judgment entered in pursuance thereof. This appeal- is from the judgment, and from an order denying defendant's motion for a new trial. Two grounds are urged upon the appeal for the reversal of the judgment and the granting of a new trial, to wit, that the verdict was not supported by the evidence, and errors in law occurring at the trial, and excepted to by the appellant.

There was little testimony offered at the trial bearing upon the material issues, outside of that given by the parties to the action, and their testimony upon all material matters was at such variance that the jury was necessarily compelled to determine as between them. The verdict shows that the jury accepted the testimony of the plaintiff. If his testimony was true, the plaintiff was entitled to a verdict as prayed for. As the jury was the judge of the credibility of the witnesses, this court will not attempt to disturb its conclusions in that respect.

Counsel for appellant argues very forcibly that two receipts offered by the defendant in evidence corroborated the testimony of the defendant, and established that payments had been made to or on account of the plaintiff since the alleged stated account, and for which defendant was not given credit. One of these receipts is dated April 23, 1901, for $100, and was given by one A. Scanavino to the defendant, and acknowledged payment by the defendant of the note of plaintiff to said Scanavino. In reference to this receipt, however, the plaintiff testified that at the time the account was stated between the parties, on the 15th day of April, 1901, it was agreed that the defendant should pay this note, and that the amount of the same was then credited to the defendant. and taken into consideration when the balance alleged to constitute the stated account was arrived at. The other receipt was dated June 6, 1901, and was given by the plaintiff to the defendant, and acknowledged the receipt of $500 on account of- labor. The defendant testified that he paid plaintiff $500 in coin at the time the receipt was given him by the plaintiff. The plaintiff, in his testimony, denied repeatedly and in positive terms that he ever received a cent from defendant as acknowledged by the receipt, but swore *232the receipt was given only "for the accommodation of the defendant.” The evidence of both the parties relative to the circumstances of the giving of this receipt is very meager. The only attempt to obtain an explanation of what the "accommodation” was that the defendant was to enjoy from the giving of this receipt is shown from the following question and answer: " Q. What was the accommodation? A. That there would be no question about me getting the money if I would sign the receipt for the five hundred dollars, but I never got five cents.” With this answer upon the part of the plaintiff, respective counsel permitted the matter to rest. It must be admitted that the answer of the plaintiff is far from lucid as an explanation of the "accommodation” to be extended the defendant. However, from all the testimony of the plaintiff, if believed by the jury, the jury could draw the conclusion that the receipt was given without consideration, and this the jury doubtless did.

It is well settled that a receipt, although evidence of the highest character, is not conclusive, but is merely prima facie, evidence of the facts recited by it, and that it may be explained or contradicted by parol. (1 Greenleaf on Evidence, 305; 2 Jones Ev. 502; 22 A. & E. Enc. of L. 2d ed. 582; 23 A. & E. Enc. of L. 2d ed. 983; Pendexter v. Carleton, 16 N. H. 489; Gleason v. Sawyer, 22 N. H. 85; Insurance Co. v. Chappelow, 83 Ind. 429; Jenne v. Burger, 120 Cal. 446, 52 Pac. 706; United States v. Jones, 8 Pet. 418, 8 L. Ed. 988.)

Conceding that the law in reference to receipts is as above stated, counsel for appellant further argues that the testimony for and against the receipt is of "equal weight,” in that the testimony of the defendant will balance that of the plaintiff, and that therefore " the receipt must have its prima facie effect”; citing 23 A. & E. Enc. of L. 2d ed. 986, and authorities therein cited. If the testimony of the plaintiff and defendant was of equal weight with the jury, then undoubtedly the receipt should have controlled. If the only point in the case upon which the testimony of the plaintiff and the defendant was in conflict was in reference to this receipt, it might seriously be questioned if the jury would have been justified in accepting the plaintiff’s testimony as *233against the receipt and the testimony of the defendant; there being no other evidence or testimony touching the receipt other than the receipt itself and the testimony of the parties. But in this connection it is proper to consider the fact that the testimony of the plaintiff and defendant was conflicting upon every essentially material point in the case, and sharply so. If the jury believed the testimony of either of the parties to the action, it must have rejected as untrue the testimony of the other, not only in reference to the receipt, but as to all, or practically all, the remaining material portion of the testimony. The jury gave the plaintiff a verdict for all he sued for. To do so, it must have believed his testimony upon several other material matters besides that affecting this receipt, and disbelieved that of the defendant. Under this state of facts, can it be said that the verdict of the jury would not be supported by the evidence, when its effect was to negative the force of the receipt? My judgment is that it cannot be so said. "There is not any rule in respect to receipts different from that applicable to any other prima facie evidence. To destroy its effect, it must be overbalanced by other evidence laid before the jury, which is to judge whether there is such a preponderance.” (23 Enc., supra.)

The term "preponderance of evidence” is well defined in an instruction given to the jury in the case of Strand v. Chicago Ry. Co., reported on appeal in 67 Mich. 380, 34 N. W. 712, and therein pronounced a "correct” definition of the term. The instruction as given is as follows: " The burden of proof rests upon the plaintiff to make out the facts which I have stated to you are essential to establish his ease by a fair preponderance of evidence. By this is meant such evidence as, when .weighed with that which is offered to oppose it, has more convincing power in the minds of the jury. It is not a technical term at all, but means simply that evidence which outweighs that which is offered to oppose it. It does not necessarily mean that a greater number of witnesses shall be produced on the one side or the other, but that, upon the whole evidence, the jury believe the greater probability of the truth to be upon the side of the party having the affirmative of the issue.” Further commenting upon this instruc*234tion, the court says: "If the evidence of the plaintiff is more probable than that of the defendant, it certainly outweighs it, and if it outweighs it the preponderance is with the plaintiff. * * * One version or the other was the true one. The jury, in determining between them, had the righf to weigh the probabilities of the different stories, to ascertain which was correct.” (Strand v. Ry. Co., supra; Corniff v. Cook, 95 Ga. 68, 22 S. E. 47, 51 Am. St. Rep. 55; Savannah Ry. Co. v. Wideman, 99 Ga. 245, 25 S. E. 400.)

In the case now before the court, the jury having plainly given credence to the testimony of the- plaintiff as against that of the defendant upon all the material issues of the case, his testimony, in the minds of the jury, outweighed. that of the defendant relative to the receipt, and hence the preponderance of the evidence was by the jury determined to be against the facts recited in the receipt.

During the progress of the cross-examination of the defendant, counsel for defendant moved to strike out a portion of defendant’s testimony elicited upon cross-examination upon the ground "that you cannot impeach a person by any matter that is not material to the issue,” and, further, "that the testimony thus far elieited, or that can be elicited upon the same lines, cannot tend to impeach his testimony, and that the only way that his testimony can be impeached is by showing that on the former trial he testified differently from what he testifies to now.” The motion was denied by the court, and this ruling is assigned as error. Upon examination the testimony moved to be stricken out does not appear to have been elicited for the purpose of impeaching the witness, nor could it have tended so to do. It was for the most part in reference to accounts contained in a book of defendant’s, a portion of which had been offered in evidence by counsel for defendant upon direct examination. I find no error in the ruling of the court.

For the reasons given, the judgment and order appealed from are affirmed.