Simms and Simms v. Price, 1 Dallam 618

MORRIS, Justice. —James W. and Sam W. Simms allege indebtedness on the part of one Price to them, in an amount exceeding $100, for goods, wares and merchandise purchased and received by said Price from them, and also for money advanced for his (Price’

s) usé and benefit. They allege that no part of this amount has been paid by them; but that a certain bank bill, which is appended to their petition, had been received by them from Price; which bill they now offer and had previously offered to return, averring the same to be counterfeit. Price, being duly served, appeared and filed his answer, denying the allegations in the petition. The cause was submitted to a jury, who rendered a verdict for the plaintiffs in the sum of $100, with interest; on which verdict a judgment was entered, and an appeal prayed by defendant.

This cause is submitted to the court on the facts, a statement of which is embodied in the record. Without going into an examination of those facts, it is only necessary for us to say, that this court has repeatedly decided that they will not set aside the verdict of a jury unless the same be clearly and manifestly against the evidence adduced before them. The testimony embodied in this record, although somewhat contradictory, still presents a case which it is peculiarly the province of the jury to investigate and determine, and we can see no reason to disturb their verdict.

It is therefore considered by the court, that the judgment below be in all things affirmed. Affirmed. Judge Ochiltree says: “The weight of testimony presented to this court is strongly in favor of the fact that the bill sued for is genuine. With regard to the character of the witnesses we of course know nothing. If the witnesses were of equal character, the verdict of the jury was certainly against the weight of testimony. I therefore think that the judgment should have been reversed and the case remanded.”