Pratt v. Clawson

7 Utah 254 | Utah | 1891

ANDERSON, J.:

This is an action by plaintiffs to recover a commission of $200, alleged to be due them from the defendants for furnishing a purchaser for certain real estate owned by defendants, for the sale of which plaintiffs claimed to be the agents of the defendants, which agency was denied by the defendants, and-this question of fact was the only question in the case in the court below. The action was begun in a commissioner’s court, where plaintiffs recovered a judgment of $200 and costs of suit. The defendants appealed to the district court, where the cause was tried before the court and jury, and resulted in a verdict and judgment in favor of plaintiffs for $200 and costs. The defendants made a motion for a new trial, which was overruled by the court, and from the order overruling such motion and from its judgment the defendants bring this appeal. The defendants rely for reversal upon the fact that, as they claim, the preponderance of the testimony shows that the only contract of agency made with plaintiffs was by the defendant Selden Clawson, and that the contract was conditional upon obtaining the consent thereto of the defendant Walter Clawson, the real estate being owned by the defendants jointly, and that Walter Clawson never gave his consent to the contract of agency. We have examined the evidence as set out in the record, and while, from a reading of it, the preponderance in favor of plaintiffs is by no means clear, yet there is a substantial conflict in the evidence, and, the jury being the judge of the credibility of the witnesses, the weight of the evidence, and the facts of the case, and having found the facts in favor of the plaintiffs, we are not prepared to say that their verdict is so far unsupported by the evidence as to justify a reversal of the case; and besides this the record'does not purport to contain all the evidence, nor an abridgment or abstract thereof, and hence it would be impossible for this court to say the jury did not have sufficient evidence before them to justify their verdict. An appellate court will not disturb a verdict merely because the evidence is conflicting, or because the court, looking at the testimony as written, would have come to a different conclusion than that reached by the jury, who had the witnesses before them. Hayne, New Trial & App. § 288; Hill, New Trials, p. 50. The judgment of the district court is affirmed.

MineR, J., and Blacnbuen, J., concurred.