62 Neb. 159 | Neb. | 1901
It is contended by the plaintiff in error, plaintiff below, that the verdict of the jury and the judgment rendered thereon should be vacated and reversed because not supported by the evidence and as being contrary to the third instruction of the court, wherein the jury were instructed that if the evidence were evenly balanced or preponderated in favor of the plaintiff, a verdict should be returned for the plaintiff, and against the defendant for the amount of the note sued on with interest. The action was based on a promissory note of the defendant, the execution of which was admitted and payment pleaded as a defense. The issue was fairly submitted, and the only question presented to us is whether, under the evidence, the verdict ought to have been sustained or set aside by the trial court as unsupported by the evidence and contrary to the instruction referred to. The principal sum in controversy was $600. The alleged payment was vigorously denied. The evidence on each side was of a most positive character and in flat contradiction. The conflicting testimony can not, as we view the record, be reconciled on the theory that some of the parties were mistaken. The defendant was the principal witness in his own behalf and swore positively as to the alleged payment, giving with much detail the circumstances regarding the transactions reflated thereto and connected therewith. The plaintiff and his son were equally positive as to plaintiff’s contention that the payment pleaded had never been made, and testified to facts and circumstances surrounding the transactions between the parties corroborative of their view of the case. There are circumstances shown in evidence which must be taken as true lending plausibility and reasonableness to claims of each of the parties. Are we justified, under such circumstances and in view of such a rec
A brief reference to the conflicting evidence in the case would probably subject our views of the case to misconstruction, and an exhaustive consideration and analysis is prohibited for want of time, nor do we think any useful purpose would be subsérved by so doing. The trial judge, Avho Avith the jury heard the testimony of the different Avitnesses, has refused to set aside the verdict as being contrary to and- not supported by the evidence. In the exercise of his deliberate judgment on the sufficiency of the evidence, Avliich it is presumed he exercised in passing on the nation for a new trial, the ruling made is entitled to consideration from a reviewing court, and will not be interfered with unless clearly wrong. Central City Bank v. Rice, 44 Nebr., 594. In Risse v. Gasch, 43 Nebr., 287, it is held that this court is not vested with authority to set aside the verdict of a jury, having for its support sufficient competent evidence, even though this court may be of the opinion that had it been the triers of the case it Avould have reached a different conclusion. In Fremont, E. & M. V. R. Co. v. French, 48 Nebr., 638, the third paragraph of the syllabus states: “The credibility of witnesses is for the jury, and this court can not say that the finding of a jury is not supported by sufficient evidence because a greater number of Avitnesses testified against the finding than testified in its favor.” The authorities are uniform
For the reasons stated the judgment of the trial court rendered on the verdict should be permitted to stand undisturbed, and is accordingly
Affirmed.