The suit is on account and money had and received. Whether or not there was error in sustaining demurrer to count 1 we need not stop to inquire, as plaintiff received the full benefit thereof under added count 4 and his pleadings amply covered every theory of his case.
Indeed counsel for appellant concedes in brief the denial of plaintiff's motion for a new trial is the only question here worthy of serious consideration. *Page 154
It is argued the evidence is voluminous and the jury must have been bewildered on account of the various figures and the volume of proof. While the evidence is rather unsatisfactory and indefinite on both sides, yet it is not unusually voluminous, and a study of it discloses a sharp conflict. Reduced to its last analysis, the verdict at last must rest upon the jury's acceptance of the testimony of plaintiff or defendant.
The rule by which this court is governed in questions of this character is well understood, and needs no repetition here. Guided by that rule, we are not persuaded the action of the trial court in denying the motion for a new trial should be here disturbed. The judgment will accordingly be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.