Harpold v. Moss
109 S.W. 928
Tex.
1908
Check Treatment
Mr. Chiep Justice Gaines

delivered the opinion of the court.

S. E. Mоss brought suit against Clay Harpold to recover upon two notes, one for $1,500, given for a town lot and to enforce a lien, and ‍‌​​​‌​‌‌‌‌‌‌​​‌​​​‌​​​​​​​‌‌​​‌​‌‌​​‌​​‌‌‌‌‌​‌​​‍the other for $715 for money lent secured by a lien upon certain shares of stock in The Texas Johnson Grass Exterminating Company.

Harpold then sued Moss and others to recover of Moss $5,000 which he alleged Moss prоmised to pay him for fifty-one shares in the before mentioned company. He also alleged that the company which was managed by Moss and the other defendants hаd made large profits in the business and that they had failed ‍‌​​​‌​‌‌‌‌‌‌​​‌​​​‌​​​​​​​‌‌​​‌​‌‌​​‌​​‌‌‌‌‌​‌​​‍to account to him for his pаrt of the profits.. He also alleged that the notes which were given to him by Moss were еxecuted with the understanding that they were not to be paid, but were to be credited uрon the $5,000 which Moss had promised to pay him for the fifty-one shares of stock in the cоmpany.

The cases were consolidated and were tried as one and aftеr hearing the evidence the court instructed a verdict for Moss and others against Harpold. The verdict having ‍‌​​​‌​‌‌‌‌‌‌​​‌​​​‌​​​​​​​‌‌​​‌​‌‌​​‌​​‌‌‌‌‌​‌​​‍been returned in accordance with the instructions, judgment was rendered upon' it. Upon appeal by Harpold the Court of Civil Appeals affirmеd the judgment.

Harpold testified to the facts substantially as alleged in his petition. Upon the material facts he was flatly contradicted by the testimony of Moss and in some particulars by the testimony of other witnesses. It may be conceded also that ‍‌​​​‌​‌‌‌‌‌‌​​‌​​​‌​​​​​​​‌‌​​‌​‌‌​​‌​​‌‌‌‌‌​‌​​‍Harpold’s version of the transaction was not very probable. The error assigned is that the сourt erred in instructing a verdict. The rule that is applicable to this question is very clearly announced in the case of Eastham v. Hunter (98 Texas, 560) in the following language: “The plaintiffs in error having introduced sufficient evidence to support a verdict in their favor, were entitled to have the issue submitted, no matter how strong the contradictory evidence might be. In determining this question we must consider the evidence in its most favorable aspect for the plaintiffs in error, disregarding conflicts and contradiction; they raised the issue of credibility, which was a question for the jury.” ‍‌​​​‌​‌‌‌‌‌‌​​‌​​​‌​​​​​​​‌‌​​‌​‌‌​​‌​​‌‌‌‌‌​‌​​‍To judge of the credibility of the witnesses and the weight to b.e given to their testimony is peculiarly the province of the jury. Hence whenever thе court undertakes to say that the testimony of a witness is entitled to no credit becаuse it is overborne by contradictory testimony or that it is so contrary to circumstances in proof which render it improbable, it very clearly assumes the function of the jury and its ruling should not be permitted to stand.

*543 The case of Joske v. Irvine (91 Texas, 574) involved a wholly different question. That was a suit for an illegаl arrest, and there was no question about the arrest having been made—but the question was as to Joske having participated in the arrest—as expressed in the opiniоn, the question was whether Joske had “requested and directed” the arrest to be madе. No witness swore that he did; but it was sought to show that he did by circumstances. It was held that the circumstances were insufficient to show the fact and in summing up the court say: “Upon the whole case, we are of the opinion that the probative force of the tеstimony does not go beyond the point of creating a mere surmise or suspicion that Joske “requested or directed” the arrest, and tha1 therefore, under the principles above discussed, there is not, in legal contemplation, “any evidence” оf that fact.” It is apparent that in that case it was not a question of the credibility оf the witnesses or of the weight to be given to their testimony. It was simply held that the circumstanсes adduced for the purpose of showing that Joske had requested and directеd the arrest were without probative force.

We find it unnecessary to decide whеther Harpold could vary by parol testimony the contracts evidenced by his promissory notes for if Moss promised to pay him $5,000 for the stock in the company, he would hаve the right to recover upon that and to have it offset against the recovery upon the notes.

For the error of the court in instructing a verdict, the judgment of the District Court and that of the Court of Civil Appeals are reversed and the cause remanded.

Reversed and remanded.