Opinion
No. 40503.
May 6, 1957.
1. Sales — action for goods sold — plea of payment — verdict for defendant not contrary to weight of evidence.
In suit to recover balance due on an account for goods sold defendant wherein defendant interposed plea of payment to the traveling salesman for plaintiff, verdict for defendant was not contrary to the weight of evidence.
Headnote as approved by Hall, J.
APPEAL from the Circuit Court of Copiah County; Tom P. Brady, Judge.
Wells, Thomas Wells, Roland D. Marble, Jackson, for appellant.
I. The Trial Court erred in overruling the motion of appellant for a new trial based on the ground that the verdict was contrary to the overwhelming weight of the evidence. Flournoy v. Brown, 200 Miss. 171, 26 So.2d 351; Jones v. Carter, 195 Miss. 182, 13 So.2d 623; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Lynch v. American Slicing Machine Co., 202 Miss. 515, 32 So.2d 546; Montgomery Ward Co. v. Windham, 195 Miss. 848, 16 So.2d 622, 17 So.2d 208; Rawlings v. Inglebritzen, 211 Miss. 760, 52 So.2d 630; Standard Oil Co. v. Henley, 199 Miss. 819, 25 So.2d 400; Tabb v. Davis, 202 Miss. 538, 32 So.2d 575; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3; White v. McCoy (Miss.), 7 So.2d 886; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80.
W.M. Broome, Crystal Springs, for appellee.
I. The verdict of the jury and judgment of the Court is not contrary to and against the overwhelming weight of the evidence and the verdict of the jury is amply supported by the evidence. Blue Bell Mfg. Co. v. Lewis, 200 Miss. 685, 27 So.2d 900; Boroughs v. Oliver, 226 Miss. 609, 85 So.2d 191; Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So.2d 356; Dixon v. Parker, 3 Howard (4 Miss.) 219; Drake v. Surget, 34 Miss. 458; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565; Fisher v. Leach, 10 Sm. M. 313; Gee v. Rimmer, 188 Miss. 460, 195 So. 342; Harper v. Wilson, 163 Miss. 199, 140 So. 693; Herron v. Bondurant, 45 Miss. 683; King v. Rowan, 82 Miss. 1, 34 So. 325; Latimer v. Dent, 177 Miss. 869, 172 So. 126; Lynch v. American Slicing Machine Co., 202 Miss. 546, 32 So.2d 575; Magnolia Textiles v. Gillis, 206 Miss. 797, 41 So.2d 6; Mississippi Central R. Co. v. Roberts (Miss.), 160 So. 604; Mississippi Power Light Co. v. Griffin, 81 F.2d 292; New Orleans N.E.R. Co. v. Lewis, 214 Miss. 163, 58 So.2d 486; Paine v. Dimijian, 201 Miss. 522, 29 So.2d 326; Presley v. Quarles, 31 Miss. 651; Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86; Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478; Skene v. O'Dwyer, 204 F.2d 909; St. Louis S.F.R. Co. v. Bowles, 107 Miss. 97, 64 So. 968; Standard Oil Co. v. Henley, 199 Miss. 819, 25 So.2d 400; Tri-State Transit Co. v. Moore, 188 Miss. 722, 196 So. 231; Trotter v. Staggers, 201 Miss. 9, 28 So.2d 237; True-Hixon Lbr. Co. v. Thorn, 158 So. 909, 171 Miss. 783; Tunstall v. Walker, 2 Sm. M. 324; United States v. Fancher, 84 F.2d 306; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164, So. 3; Virginia-Carolina Chemical Co. v. Jefferson, 186 Miss. 861, 192 So. 306; Walters v. Stonewall Cotton Mill, 136 Miss. 361, 101 So. 495; Waul v. Kirkman, 13 Sm. M. 599; Westbrook v. Corneil, 199 Miss. 18, 23 So.2d 753; Young v. Wilson, 24 Miss. 694.
The appellant is engaged in the wholesale grocery business and the appellee is engaged in the retail grocery business. Appellant filed suit against the appellee for the recovery of an alleged balance of $798.42 due it by the appellee. The case was submitted to a jury and a verdict was returned in favor of the appellee and judgment entered thereon denying the claim. Appellee's defense was that she had paid the account sued upon. Both the appellee and her husband testified that the account was paid in cash to the traveling salesman for the appellant. In fact, according to the record, the appellee had no bank account. She had made twenty-six different payments to the salesman who was authorized to accept the same. These extended from November 22, 1954, through May 27, 1955. These payments ranged from $44.26 to $308.31 and were all in cash. The credit manager for appellant testified that the payment of $798.42 was never received by the company. The salesman testified that the payment was never made to him. These are all of the witnesses in the case.
After the verdict the appellant made a motion for a new trial which was overruled, and the only error assigned here is that the verdict is contrary to the overwhelming weight of the evidence, for which reason the motion for a new trial should have been sustained.
(Hn 1) Issues such as here presented are solely for the determination of a jury. In this case the jury had the opportunity of seeing and observing the witnesses as they testified and so did the circuit judge who overruled the motion for a new trial. We are unable to say that the verdict is contrary to the overwhelming weight of the evidence, and since this is the only contention of appellant it follows that the judgment of the lower court should be affirmed.
Affirmed. McGehee, C.J., and Arrington, Ethridge, and Gillespie, JJ., concur.