59 Cal. 57 | Cal. | 1881
The real issue in this case was whether the transaction between the plaintiff’s intestate and the defendant was a gift, and upon that issue the jury returned a verdict in favor of the defendant. A motion for a new trial on the ground, among others, that the evidence was insufficient to justify the verdict, was denied by the Court below. If there is any evidence to sustain that verdict, this Court will not disturb the order of the Court below. For the purpose of determining that question, it will only be necessary to consider such portions of the testimony as are most favorable to the defendant. And we think that that contained in the following extracts will suffice:
In one part of his testimony the defendant says: “ So I
McGovern testified that on the day following that on which the interview first above referred to occurred, Helm gave to him, McGovern, sufficient money to purchase two hundred and fifty shares of stock, and that he, McGovern, gave the
“Q. That delivery was made after Helm had said he proposed to do that business in that way?
“A. Yes, sir.”
The transaction as narrated by these witnesses reduces itself to this: That Helm, being applied to by the defendant to loan him three thousand five hundred dollars to invest in certain mining stock, made some inquiries concerning the stock, and finally concluded to take one hundred shares himself. McGovern wished to buy fifty shares. Helm thereupon gave to McGovern a sufficient sum to purchase two hundred and fifty shares. After the purchase was made the three met again, when Helm insisted upon making a present of one hundred shares to Martin, fifty shares to McGovern, reserving one hundred shares himself.
If, as contended by appellant, each of these witnesses contradicted himself, and was contradicted by the other, the jury was the sole judge of the weight to be given to their entire testimony, and to every part thereof. This court can not pass upon the question of the credibility of witnesses, nor upon the preponderance of evidence.
The plaintiff was sworn in her own behalf, and on her
The plaintiff’s exceptions to the charge of the Court áre based upon the assumption of counsel that there was no evidence which tended to prove that the transaction was a gift. We have already indicated that, in our opinion, there was some evidence tending to prove that such was the transaction. We do not think that there was any error in the charge of which appellant can justly complain.
Judgment and order affirmed.
Morrison, C. J., McKee, J., and Thornton, J., concurred.