Opinion
Opinion April 21, 1930.
EVIDENCE. JURY.
Where the only issue is one of fact, credibility of witnesses is to be appraised by the jury who observe them as they testify. In the absence of evidence of bias, prejudice or improper motive, findings of a jury will not be disturbed.
In the case at bar there was a mass of contradictory testimony and abundance of evidence on which the jury could have properly founded its verdict.
On motion for new trial by plaintiff. An action of assumpsit for a balance claimed as result of a contract of barter.
Verdict was for the defendant. Plaintiff filed a general motion for a new trial.
Motion overruled. The case is sufficiently stated in the opinion.
L. L. Levine, F. H. Dubord, for plaintiff.
C. A. Blackington, for defendant.
SITTING: PATTANGALL, C. J., DUNN, STURGIS, BARNES, FARRINGTON, JJ. MORRILL, A. R. J.
Suit in assumpsit was brought by a dealer in live stock against a farmer, for balance alleged to be due and arising in a contract of barter wherein the dealer exchanged two cows for a bull, a boar, and a sum of money that has not been paid.
The value of the cows is claimed to be more than that of the two animals taken in exchange. Plaintiff contends that the difference amounts to forty-eight dollars.
By his brief statement, filed with the general issue, defendant sets up as his defense that one of the cows was not what he bought; that plaintiff warranted the cow to be sound and valuable and well worth seventy-five dollars, and that the plaintiff when he made this representation well knew her to be old, infirm and unsound.
Defendant testified that plaintiff assured him the cow was, "all right in every way, . . . she is a good cow, . . . giving a good mess of milk, . . . I know that cow is all right and will be all right, . . . extra nice, . . . giving eight quarts of milk."
Defendant's wife testified that she heard plaintiff state to her husband that the cows he offered in barter were "two good cows, straight and right every way."
Plaintiff denies any warranty of quality or condition of the cows.
There is much testimony of complaint on the part of defendant, and promise by plaintiff to substitute a good animal in place of the one complained of.
There is much testimony of the worthlessness of the cow complained of. It is said she gave no more than a quart of milk; that her milk was not fit for use; that she was diseased and that for a time she was doctored but did not improve.
About ten months after purchase she was sold for a trifling sum.
The jury was probably made up of practical persons, well qualified to determine the facts, and their verdict for the defendant may well be based on findings that representations were made that the cow complained of was in health and giving several quarts of milk a day; that plaintiff knew some of his representations were false; that the defendant relied on the representations found to have been made, and that he was hurt thereby, to an amount at least equal to the balance claimed.
The case is before us on a general motion for a new trial.
We find no evidence of bias, prejudice or improper motive.
We find a mass of contradictory evidence, and abundance of evidence on which the jury may properly have founded its verdict.
The only issue is of fact. Credibility of witnesses is to be appraised by the jury, who observe them as they testify.
It is not for us to say the verdict in this case is wrong.
Motion overruled.