396 CASES IN TEE SUPREME COLL l' Hill & Co._ vs. Jayne. 'January HILL & CO. Vs. JAYN E. The rule, that this Court will not disturb the verdict of the jury, unless there is a total want of evidence to sustain it, (15 Ark. 403; 542) approved. Appeal from the Circuit Court of Ouachita coanty. The Hon. ABNER A. STITH, Chellit Judge. Watkins & Gallagher for the appellants, Cummins & Garland for the appellee. Mr. Justice Thinly delivered the opinion of the Court. This was assumpsit, brought by Ow appellee against the appellant. in the Ouachita Circuit Court, to the Fall term, 1855, for so much goods, wares and merchandize sold by the appellee to appellants. Damage laid at $1,500. At the return term of the writ of summons, the oppellants peared by attorney and filed their two pleas, to wit: 1. Non assumpsit. 2. Tender before snit was commenced of $32.94 outs, which, by their plea, tlwspiofrssed to bring into Court, and iknied any further indebtedness. Siinihter to the first plea, and replication to the second, traversing the tender therein set up, concluding to the country, and similar thereto by the appellants. The issues being thus made up, a trial was had before a jury on these issues, and a verdict was rendered for the appellee for the stun of $193.68 cents, for which amount judgment was rendered by the Court. No exceptions seem to have been taken b y the appellants dnring the progress of the trial.
OF THE STATE OF ARKANSAS. 3 9 7 Term. 1857 Hill & Co vs Jayne. After the vordiet, as above, had been rendered, and the jud g-ment entered in conformity therewith, the appellants, by attorney, filcd their motion for a new trial, on the following grounds. 1. The finding of the jury was cientrary to law and the evidence. 2. I-■icause the finding of the j;irv was cantrary to the evidence. for a new trial was considered and overruled by the Court ; for which, the appellants excepted at the time, and prepared and tendered their hill of exceptions. settin .r out all the evidi nee given at the trial; which bill of exceptions was signed and sealed by the Court, and admitted of record, and from which we dei ice the following facts; It was testified, on the part of the appellew. by Brown, that he was, rind had bet n book-keeper for appellee, who was engaged m the drng business, in the city lif Philadelphia, for sonie consideralile time—that he knew. of his own tnowledge. that the account of the particulars of the appellee's demand against the appellants and filed in the cause, was eorrect, and that the items therein charged had Leen furnished them hy the appellee. at their instance and lowest, and that the balance of $346 50 ci nts. as shown by the account, was still due and owing to the apprthv_ by the appellant. Harpor, a witness for the same pat ty, provet1 one item in the bill of particulars, amounting to $63.4S cents. Matlock, athither witiwss for appellee, testif?ed that he was agent for appellee, in Camden, and knew that the charges, the bill of particulars shown him, were in accordance with the usual rates for such articles. He further testifies that an item in appellee's bill of particulars, for the further 911111 $171.1-e cruit ,;. WiR -4 correct. i_rs evidenced by a letter of appellant's agent di-11 .1-.11 to bim, in which this ame amt was acknowledged, in addition to the amount proved hy Harper: Tie also proved that the order, accompanying the letter for mercliandize to the amount of $105, was also in the baud writing of appellant's agent, TTe ilso proved a credit paid him on account of apia 1-the appellants, of $1441.33 cents, made in December,
398 _LINFS IN THE SUPREME COTJRT Hill & Co vs Jayne January 1852, which should go as a credit on the account of appellee, 'exhibited as his bill of particulars. This payment was made by return of merdiandise furnished them by appellee and re-, turned by his order. This seems to have been all the evidence offered at the trial on the part of the appellee. The only testimony offered on the part of the appellants, w as that of Peter Cwinelly, who stated that he was book-keeper for appellants, at the time appellee's account against them pur ports to have accrued, and from thence forward to the time of deposing; that he was vognizant of all the transactions between the partius to the 'suit, anti that appellants were only indebted to appellee, on account of those transactions, in the sum of $32 94 cents, and no more. When asked, on cross-examination, how it was that appellee's account had been reduced to the sum stated by him as the balance due, lie stated that "Jie supposed it had been done by remittances, as the agents of appellee were required to remit every six months." He further stated, on cross-examination, that appellee was in the habit of keeping accurate and correct accounts with his agents, Hill & .Co. appealed, and assign for error the overruling of their motion for a new trial_ And this we will proceed to consider. It is a rule of universal practice and appliation in this Court, that the decision of the Court belo■t, refusing to grant a new trial, upon the gToundh that the verdict is contrary to the evidence and the 'damages excessive, will not be disturbed when there is no total want of evilknee to sustain any material allegation in the declaration ; and the amount of damages, upon all the facts of the case, •Ioes not sitoe' . : one's sense of justice. Pleasants vs_ Heard, 15 Ark, H., 402, Russell vs, Cady, surv. Ili, 542. So far from it hHing the ease, in the instance before us, that there was a total want of evidence to sustain the verdict, we think the facts pri sented manifest very clearly that the verdict is sustained by the weight of the evide nee. The jury were certainly justified in finding the amount re-
FATE 1oF k :10;1 'ruin, 1857: turned hy thi:111, in favor of the appellee. lf,they had Or t qi returned a larger amount of chimages than they did, we shouM not have telt themselves authorized, -under the uniform practice of this Court, to linvo li4urbed the verdict. Finding no error in the judgment and proceedings ,of the luaellita Circuit Court in this cause, the same is, therefore, in nil things affirmed, with damages at 10 per cent. on the amount of the judgment below.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.