Witter v. A. L. Hoover & Son

24 Neb. 605 | Neb. | 1888

Reese, Ch. J.

This is a proceeding in error to the district court of Lancaster, county. The action was instituted by defendants in error against plaintiff in error, upon an account for the board of the wife of the latter, Mary Witter, for thirty-four weeks and six days, at the agreed price of $7 per week, and for fuel furnished her during said time, amounting to $31, making an aggregate of $275.

The answer of plaintiff in error to the petition was a general denial.

The case was tried to the district court without the intervention of a jury, the trial resulting in a general finding-in favor of defendants in error for the sum of $275, with interest at seven per cent from December 1, 1886, making a total of $293.45, and upon which finding a judgment was duly rendered. Plaintiff in error brings the case to this court for review by proceedings in error, and contends that the judgment is not sustained by sufficient evidence. This is the only error assigned in his brief.

Upon a careful examination of the testimony adduced, we find a sharp conflict between the statements of the witnesses. A. L. Hoover, one of the defendants in error, testified, in substance, that the agreement for the board of plaintiff’s wife was made, and that thereunder she continued for some time to board at his hotel, and for which plaintiff paid; that upon a certain occasion, after payment had been made, plaintiff in error notified him that after a certain date he would cease to be responsible for her board, when the witness told him that if he was not going to board her there he should take her away, and that if he did not take her away he would be held responsible for her board; that plaintiff then said that he did not desire to get into trouble over the matter, and that he would call again and'see further concerning it; that he did not call, and the witness continued to board her as he had done previous to that time. This is substantially the testimony •of plaintiff in error, with the exception that he denies having said that he would call again, simply saying that he notified defendants in error that he would be responsible no longer for the board of his wife at their hotel. There are some circumstances which tend to corroborate the testimony of plaintiff in error, among which is the testimony of James Johnson, who testified to a conversation with the witness, A. L. Hoover, in which Hoover stated that plaintiff in error had paid him all up before he left, and told him that he would not pay any more, but that plaintiff had brought his wife there, and that he might take her away. This statement is in some particulars ■denied by Hoover, who says his statement was to the effect that plaintiff had paid to a certain time, and said that he would be responsible no longer, and upon being requested to take her away if he did not desire to pay her board, he said he would call again and see further about it.

It must be conceded that if Hoover’s testimony is correct the decision of the district court was right. Of this the trial court was the sole judge, and this court cannot, in its appellate jurisdiction, undertake to say whether the •circumstánces and probabilities affecting the testimony of the various witnesses before the trial court preponderate ■either one way or the other, so long as the record shows sufficient evidence upon which a finding could have been predicated. This rule, is too well settled in this state to meed a citation of cases.

The judgment of the district court must therefore be ¡affirmed.

Judgment affirmed.

The other judges concur.