Warren v. Cummings, 37 Wis. 81

Warren v. Cummings

37 Wis. 81 | Wis. | 1875

Cole, J.

The ground on which we are asked to interfere with the ruling of the court below in refusing a new trial is, that the verdict was wholly unsupported by evidence. If there is no evidence at all to support the verdict, it is the duty of court to which the motion for a new trial is addressed, to set it aside, and of this court to correct its action, if it refuses. Eaton v. Joint School District, 23 Wis., 374; and Van Doran v. Armstrong, 28 id., 236. But where there is evidence which will sustain the verdict, the motion for a new trial is mainly addressed to the sound discretion of the court, and this court will not interfere. See Barnes v. Merrick, 6 Wis., 57.

Was there, then, any evidence which tended to prove the defense of payment of the note upon which the action was brought ? It seems to us there was.

The witness Miller testified that, in December, five or six years before the trial, he went with the defendant Cummings to the office of Marcus Warren, the intestate, when a note was paid. True, he is not very clear or definite in his recollection as to the amount of money paid, or whether it was for principal or interest. The legitimate inference, however, to be drawn from his testimony is, that a note was then paid and discharged. Unless this were so, it is difficult to exempt him from the charge of deliberate falsehood. His testimony is corroborated by the witness Knie. It is said that there are discrepancies and even contradictions in the statements of these witnesses as to the payment of the note, the persons present, and the way they crossed the Wisconsin river. The testimony is certainly in conflict upon certain points; but it is in harmony upon the main fact in issue, the payment of money by Cummings to Marcus Warren in the latter’s office. The evidence of the *84payment of the note may be weak and rather vague. It seems to us that it is. But still we do not feel warranted in reversing the order of the court below. The circuit judge heard and saw the witnesses on the stand, and he might have been satisfied, from their manner of testifying, that they were telling the truth in regard to the material point in the case. But that there was evidence from which the jury might have inferred that the note had been paid, we think is indisputable.

It is said that the note about which the witnesses testified was not identified as being the one upon which this action is brought. The obvious answer to this objection is, that it does not appear that Warren ever held any other note against Cummings than the one in question. The presumption is that the payment was upon this note, and that the conversation in the office of Warren related to it.

We think the order overruling the motion for a new trial must be affirmed.

By the Court.— Order affirmed.