HILL V. JAYNE. VoL. 18 denied any further indebtedness. Similiter to the first plea, and replication to the second, traversing the tender therein set up, concluding to the country, aud similiter 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 sum $193.68 cents, for which amount judgment was rendered by the court. No exceptions seem to have been taken by the appellants during the progress of the trial. *After the verdict, as above, [*397 had been rendered, and the judgment entered in conformity therewith, the appellants, by attorney, filed their motion for a new trial, on the following 3961 *HILL & CO. grounds. . V. 1. The finding of the jury was con-JAYNE. trary to law and the evidence. 2. Because the finding of the jury The rule, that this court will not disturb the ver-was contrary to the evidence. dict of the fury, unless there is a total want of evidence to sustain it (15 Ark. 403; 542) approved. The motion for a new trial was considered and overruled by the court; for Appeal fronz the Circuit Court of Oua-which, the appellants excepted at the chita County. time, and prepared and tendered their HE HON. ABNER A. STITH, Cir-bill of exceptions, setting out all the T cuit Judge. evidence given at the trial; which bill Watkins & Gallagher, for the aPpel-of exceptions was signed and sealed by lants. the court, aud admitted of record, and from which we derive the following Cumnzins & Garland, for the ap-pellee. facts: It was testified, on the part of the ap-HANLY, J. This was assumpsit, pellee, by Brown, that he was, and had brought by the appellee against the ap-been bookkeeper for appellee, who was pellants, in the Ouachita circuit court, engaged in the drug business, in the to the fall term, 1855, for so much city of Philadelphia, for some consid-goods, wares and merchandise sold by erable time—that he knew, of his own the appellee to appellants. Damage knowledge, that the account of the laid at $1,500. particulars of the appellee's demand At the return term of the writ of against the appellants and filed in the eummons, the appellants appeared by cause, was correct, and that the items attorney and filed their two pleas, to-therein charged had been furnished wit : them by the appellee, at their instance 1. Non assurnpsit. and request, and that the balance of 2. Tender before suit was commenced $346.50 cents, as shown by the account, of $32.94 cents, which, by their plea, was still due and owing to the appel-they professed to bring into court, and lee, by the appellants.
JAN. TERM, 1857. HILL V. JAYNE. Harper, a witness for the same party, monthe." He further stated, on cross-proved one item in the bill of particu- examination, that appellee was in the lars, amounting to $63.48 cents. habit of keeping accurate and correct Matlock, another witness for appel- accounts with his agents. lee, testified that he was agent for ap- Hill & Co. appealed, and assign for pellee, in Camden, and knew that the error the overruling of their motion charges, in the bill of particulars shown for a new trial. him, were in accordance with the usual And this we will proceed to consider. rates for such articles. He further tes- It is a rule of universAl practice and tified that an item in appellee's bill of application in this court, that the de-particulars, for the further sum of cision of the court below, refusing to $35.02 cents, was correct, as evidenced grant a new trial, upon the grounds by a letter of appellant's agent pro- that the ierdict is contrary to the evi-duced to him, in which this amount dence and the damages excessive, will was acknowledged, in addition to the not be disturbed when there is no total amount proved by Harper. He also want of evidence to sustain any nzaterial proved that the order, accompanying allegation in the declaration, and the the letter for merchandise to the amount of damages, upon all the facts amount of $105, was also in the hand of the case, does not Mock one's sense of writing of appellant's agent. He also justice. See Pleasants v. Heard, 15 proved a credit paid him on accountof Ark. R. 403; Russell v. Cady, surv., Id. appellee, by the appellants, of $146.33 542. 398'9 cents, made in Decem ber, *1852, So far from it being the case, in the which should go as a credit on the ac- instance before us, that there was a count of the appellee, exhibited as his total want of evidence to sustain the bill of particulars. This payment was verdict, we think the facts presented made by return of merchandise fur- manifest very clearly that the verdict nished them by appellee and returned is sust tined by the weight of the evi-by his order. This seems to have been dence. all the evidence offered at the trial on The jury were certainly justified in the part of the appellee. finding the amount returned by them, The only testimony offered on the in favor of the appellee. lf they had part of the appellants, was that of even returned a larger amount Peter Connelly, who stated that he was of damages than they did, we should bookkeeper for appellants, at the time *not have felt ourselves [*399 appellee's account against them pur- authorized, under the uniform prac-ports to have accrued, and from thence tice of this court, to have disturbed forward to the time of aeposing ; that the verdict. he was cognizant of all the transac- Finding no error in the judgment tions between the parties to the suit, and proceedings of the Ouachita cir-and that appellants were only indebted cuit court in this cause, the same is, to appellee, on account of those tran- therefore, in all things affirmed, with sactions, in the sum of $32.94 cents, and damages at 10 per cent, on the amount no more. When asked, on cross-ex- of the judgment below. amination, how it was that appellee's account had been reduced to the sum stated by him as the balance due, he stated that "he supposed it had been done by remittances, as the agents of appellee were required to remit every six
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.