27 N.Y.S. 624 | N.Y. Sup. Ct. | 1894
The appellants do not claim that any error of law was committed by the court below, but ask that the verdict be set aside upon the sole ground that it is contrary to the weight of evidence. One answer to the application is that it is based entirely upon the testimony of one of the defendants, and it is well settled that, even where the testimony of a party is uncontradicted, his interest in the result makes its credibility a,question for the jury. Goldsmith v. Coverly, (Sup.) reported in 27 N. Y. Supp. 116, lays down that rule, citing Honegger v. Wettstein, 94 N. Y. 261; Wohlfahrt v. Beckert, 92 N. Y. 494; Kavanagh v. Wilson, 70 N. Y. 177; Elwood v. Telegraph Co., 45 N. Y. 549; and other cases. But in the present case it cannot be said that the testimony of the party is uncontradicted. By the contemporaneous written agreement the right of the publishers to be paid in goods for the advertisement was absolute if the goods were demanded in three years. By the testimony of defendant the goods were not to be delivered except on board ship destined to a foreign port. The bill of sale executed by defendant in August, 1887, six weeks after the advertising was finished, being without condition, was also contradictory of defendant’s testimony. The verdict was warranted by the evidence, if not absolutely required by it.
The point made by respondent, that ‘the contract, being in writing, could not be contradicted by paroi testimony, is also well taken. This is not a case where, upon inspection, a contract is seen to be incomplete, which allows that part of the contract not reduced to writing to be proved by paroi. Even in such a case the written part of the contract cannot be contradicted, as is here sought to be done. Thomas v. Scutt, 127 N. Y. 133, 27 N. E. 961.
Another answer to the motion of appellant is that the defense interposed at the trial was not pleaded, and therefore not admissible if objected to. It is not allowable to set aside a verdict in