Stewart v. Hamilton

19 Tex. 96 | Tex. | 1857

Roberts, J.

The errors assigned are, that the verdict was contrary to the law and the evidence ; and that the Court erred in not granting a new trial.

Upon the trial there was no dispute as to the law of the case ; and the verdict, being for Hamilton for the value of the horse, was founded on the belief, on the part of the jury, that the horse was warranted to be sound, and that he was unsound at the time of the sale. Such unsoundness is the contested fact.

The testimony was conflicting. That in favor of Hamilton was given by fewer witnesses than that in favor of Stewart, but of a less negative character. There is not that preponderance in favor of Stewart, produced by the number of Ms witnesses, which would enable this Court to say that the verdict is clearly wrong. In fact the warning given by Stewart to Hamilton, not to overhbat or overfeed the horse, rather confirms than attacks the conclusion of the jury, that the horse was unsound ; and the fact that Hamilton expressed himself well pleased with the horse a few days after he had purchased him is by no means conclusive against him. All these things it is the province of the jury to judge of; and their familiarity with them eminently fits them to determine them, and gives a weight to their judgment amidst a confusion of conflicting facts, opinions and presumptions, not readily to be disregarded by a Court. (Russell v. Mason, 8 Tex. R. 226 ; Wells v. Barnett, Id. 509 ; Briscoe v. Bronaugh, Id. 340.)

The second ground taken in the motion for new trial relates to newly discovered evidence. In Stewart’s affidavit, filed after the trial, in support of this ground, he simply states that since the trial he has discovered new and material testimony, which was unknown to him at the trial, without showing what diligence he had used to obtain testimony, or in any manner accounting for his not finding it out before.

The evidence is cumulative, tending to establish, what was sought to be established on the trial, that the horse was not unsound at the sale, and that he most probably died from improper treatment afterwards ; and is not of that forcible character to satisfy the mind that the result would be changed by it. To establish bad treatment it was proved that the horse was tied in the creek, as was supposed for a founder ; and by the new evidence it is proposed mainly to establish that in the opinion of the witness the horse died by an over heat in a drive in which Hamilton rode him. This being the most prominent fact sought to be proved, it is unnecessary to refer to any other. Under the well established rules of this Court on the subject of new trials, a case has not been made out upon which this Court can furnish relief. (Madden v. Shappard, 3 Tex. R. 49 ; Watts v. Johnson, et al, 4 Id. 311.)

Judgment affirmed.