Elbert, J.
The only error insisted upon by counsel in argument is that the verdict of the jury was manifestly against the evidence, “the instructions of the court and the law of the case.”
This court and the Territorial supreme court have repeatedly ruled that “ when the evidence is conflicting and the verdict is not manifestly against the weight of evidence, the verdict will not be disturbed. Taylor v. Randall, 3 Col. 400; Machette v. Wanless, 2 id. 169; Walling v. Warren, id. 434; Fisher v. Martin, id. 525; Martin v. Hazard Powder Co., id. 601; Hall v. King, id. 711; Murphy v. Cunningham, 1 id. 467; Mather v. Glines, id. 472; Smith v. Cisson, id. 29.
In the case of Walling v. Warren, supra, it was held that where the plaintiff and defendant contradict each other upon the stand, and neither of them is supported by other testimony, the verdict will not be disturbed.
Upon the matter of a new promise, Hawley testifies to a conversation with Barker in April or May, 1868, in which Barker promised to pay him interest on the note. This would necessarily involve a recognition of the existence of the principal indebtedness and a promise to pay it.
Barker denies .that any such conversation was had. Neither was corroborated and the jury were the judges of the credibility of the witnesses.
Upon the matter of a new and substituted contract, Hawley testifies there was a verbal agreement that “ if I would send [328]*328Mr. Schellenger to Black Hawk and Barker executed a deed to me for certain property, I would give him a certain note.” This statement of the terms of the subsequent contract is corroborated by the testimony of Mr. Schellenger. He says “he (Hawley) told me to prepare it (the deed), take it to Mr. Barker and have him sign it — that Mr. Barker had agreed to do so, or pay him, Hawley, $1,100,1 think it was, and as the money had not been paid, he wanted a deed to the property.”
Barker in substance testifies to an unconditional agreement upon the part, of Hawley to receive a deed for the property, in satisfaction of the agreement sued upon, without any alternative.
Barker is corroborated by Burnell who testifies, that .in a conversation between Hawley and Barker in Barker’s store in Denver, in September, 1873, that Barker claimed that there was another and subsequent agreement, which provided that if the property was not sold by April, 1887, that he, Barker, was to deed the property back to Hawley, and that Hawley said such was his understanding. •
Here again the testimony of the plaintiff and defendant is conflicting, and each is corroborated by another witness.
After its execution in March, 1869, Barker retained the deed until October, 1873, when he tendered it to Hawley after Hawley had demanded the money in September.
The evidence respecting the acceptance of the deed is conflicting, but the preponderance we think is that Hawley refused to accept it. Hawley so testifies.
Barker testifies that Hawley agreed to accept if he would pay the fee for recording, but admits that when he tendered him the deed in October, 1873, Hawley said “he did not know if he could accept it — would have to see Mr. Teller first.”
Neither is corroborated.
The verdict of the jury involves their finding that there was no acceptance and without acceptance no title passed. There was no compliance with the terms of the substituted agreement, if there was one.
[329]*329The testimony of the two Brakes, and Hawley’s letter to Barker respecting the lease to them, prove nothing certain or definite respecting the relation which Hawley at that time sustained to the property. There is that which indicates him as the owner ; there is as much or more that indicates him an agent.
The case is clearly one for the application of the rule that when the evidence is conflicting and. the verdict is not manifestly against the weight of evidence, the verdict will not be disturbed. As was said in the case of Taylor v. Randall, supra, “It was the province of the jury that tried the cause, as the evidence was so contradictory as to be impossible of reconciliation to determine to whom credit should be given. They are the proper judges of the weight of evidence and the credibility of witnesses. Sitting as an appellate court, we must assume the truth to be with the evidence which upholds, and not with that which assails the verdict, unless the weight of evidence very strongly preponderates against it. It is not enough that had the verdict been different, this court would not have disturbed it.”
The judgment of the court belpw is affirmed with costs.
Affirmed.
Dissenting opinion of Stone, J. I regret that the only fixed conclusions which I have been able to arrive at upon • the evidence in this case impel me to dissent from 'those reached by my brethren on the bench, and I have therefore felt it important to preface my reasons with reciting the material portions of the evidence and other parts of the record.
Plaintiff sued upon the following instrument:
“Received of H. J. Hawley eleven hundred and thirty-six dollars ($1,136) in full payment of one-sixth part of lode mining claims, five (5), six (6) and seven (7) east from the discovery on the Dorchester lode, situated in the Russell mining district in Grilpin county, Colorado, which one-sixth of above-mentioned claims I am to hold and endeavor to make a sale of the same, and in case I make a sale, I am to [330]*330pay to said Hawley whatever amount I receive, less the expenses incurred in making such saló, and any time after April 1st, 1867, should the said Hawley so desire and demand of me, I agree to refund and pay to him the above-named sum of $1,136, and when such payment is so made said above-described property is to revert back to me.
(Signed) Wi. J. Barker.
Black Hawk, Colorado, June 18,1866.”
Defendant plead the general issue, the statute of limitations, and special pleas setting up a subsequent contract to deed back the property in lieu of the money mentioned in the instrument declared on.
So much, of the evidence as is pertinent to the issue was ■ as follows:
The plaintiff testified in substance : I made a demand on the defendant for the money in April or May, 1868; told him I ought to have the money, or the same rate of interest on it that I was paying; he said he would allow me ten per cent interest; conversation occurred at his place of business; no one present but ourselves; do not know when we next talked ; as late as 1870 ; two or three years intervened between the first and the next conversation ; the agreement is in defendant’s handwriting; he acknowledged it at different times; in September, 1873,1 think I had conversation with defendant about it in Denver ; was in his store; cannot recollect all the conversation; I made demand for the money; he asked, why I had not made demand before; think I told him I did not think I could collect it; hé lived at Black Hawk and I at Central; there was ' a verbal agreement, that if I would send Mr. Schellenger to Black Hawk, and Mr. Barker would execute a deed to me for certain property, I would give him a certain note; Mr. Schellenger did not bring back the deed ; I sent him down there and gave instructions about the deed ; my recollection is not very clear, but I tried to get back same property that I sold, being the undivided one-sixth of three hundred feet [331]*331of the Dorchester lode; may be the claims five, six and seven east,- I am not certain though; the amount was $1,136; $1,000 on account of the purchase of the property and $136 for work on the same; I don’t know that he ever promised to pay it; he only promised to pay interest; never denied or refused to pay it. (The instrument sued on was here introduced.) I had a conversation with Barker regarding this instrument; I wanted to know what he was going to do about it; he said he would pay me something on it; I believe he offered to pay it one time ; said he would pay me $800; this was soon after it was due in 1867,1 think he had given up trying to sell the property; I told him I woiild not take $800 ; I told him I would take the property back if he would deed it to me, but don’t know that it was the same conversation; think I had other conversations.” The plaintiff rested here and the defendant gave in evidence the deposition of Frank A. Burnell, who. testified: “I heard a conversation between Barker and Hawley in Barker’s store in Denver; Hawley said to Barker, ‘ do you know you owe me $1,000?’ Barker replied ‘No,’ and asked what it was for; Hawley said'‘in looking over my papers a few days ago, I found an agreement which said, if the Dorchester property was not sold by April, 1867, that he, Mr. Barker, was to pay the sum called for, $1,000;’ Barker replied ‘that there was another agreement made afterward, which said that if the property was not sold by April, 1867, .he, Barker, was to deed the property back to Hawley;’ Hawley said ‘that was his understanding of the thing, and he never knew any thing different until he found the agreement; ’ Barker asked Hawley ‘ if I had owed you $1,000, would you not have called for it before ; ’ Hawley said, ‘ certainly I should, for I have been hard up; ’ this conversation was in September, 1873; Hawley demanded the $1,000; I am in the employ of Barker.”
John L. Schellenger, in his deposition, testifies: “I have known Hawley since we were boys ; I made out the deed March 11,1869, at request of Hawley, to the undivided one-[332]*332sixth interest of claims five, six and seven east of discovery on the Dorchester lode, and one-sixth interest in discovery claim and claim number one on the Columbus lode; he told me to prepare it and take it to Barker, and have him sign it; that Barker had agreed to do so or pay him $1,100, I think it was, and as the money had not been paid, he wanted a deed to the property; I prepared a deed according to his request, on the 11th of March, 1869, and presented it to Barker and his wife for signature, and they signed it in my presence, and, after signing it, Barker handed it to me ; he and his wife acknowledged the same ; Barker then asked me if Hawley had sent a note of his for $60, by me to hand to him; I told him no ; Barker then requested me to leave the deed with him, stating that he would see Hawley and get the note, and then hand Mm the deed; I left the deed with Barker and reported the conversation to Hawley the same day, and Hawley said ‘ all right, I’ll see Mr. Barker,’ or words-to that effect; Hawley paid me for my services ; I saw the deed afterward in the fall of 1873, in Barker’s possession ; he presented it to me for the purpose of getting my notarial seal attached to the acknowledgment, which had not been done up- to that time; the acknowledgment was taken on the 11th of March, 1869 ; I did not attach my seal to the certificate at the time because I did not have it with me; my office was at Central, and the deed was signed and acknowledged at Barker’s house, at Black Hawk; I don’t know whether the deed was ever delivered to Hawley or not; I was authorized to accept a delivery of the deed for Hawley.”
The deed introduced is as described by Schellenger.
The testimony of the two Drakes is to the effect that in 1873 they leased the property in question from Hawley and Barker; that both claimed an interest in it, and both signed the lease; that the rent was paid to Hawley.
A letter was introduced written by Hawley to Barker, respecting the proposition to léase to the Drakes, in which Hawley says: “They urged me to make them a proposi* [333]*333tion, which I did verbally, which was for them to pay ns ten per cent of the gross proceeds from the mine,” etc.
The defendant Barker testified : “In the fall of 1865,1 purchased the property on the Dorchester lode; parts of claims five, six and seven; I took a powér of attorney for the undivided half of five; when the money, $1,000, was deposited, Hawley was to make deed to me; before the time expired he was paid the $1,000, and gave me a deed for the undivided half of number five on the Dorchester lode ; I went east to make sale of the property in the fall of 1865, and returned in the spring; I had, as I supposed, nearly perfected a sale of the Dorchester property,, for $30,000; I corresponded with Hawley while I was gone; he asked- me to give him one-sixth of what the property should sell for, instead of the $1,000 I had paid him, and I agreed to this ; I did not perfect the sale and returned in May, 1866 ; sometime after he said he ought to have something to show that he had paid me $1,000, and I gave him this document (the instrument sued on); he paid back the $1,000, and I made the agreement to give him one-sixth of the proceeds of the sale ; afterward he said he did not like the way the agreement was drawn, as after April he would be obliged to receive the money named' in the agreement, instead of the property as the agreement called for ; I think the last agreement was made thirty or .sixty days after the first; I made an agreement and took it to Hawley; I have not seen it since,-and kept no copy of it or of the other; I have heard Hawley’s testimony; I had no conversation' with him about paying ten per cent interest; I told him several times I would make a deed to him ; I never had any conversation with him in which I agreed to pay him $800 ; I have not since that time agreed to pay it, nor has he demanded it, as he always claimed an interest in the property ; he had my note for $60; he owed me $111 for work; $1,000 was the price of the property ; $136 for work on the lode ; the last amount paid for work was $669.98, April 15, 1867; one-sixth was $113.32 ; a credit of $60 was [334]*334allowed, leaving a balance due me of $51.66; he said at different times, he would pay.
In 1869, Schellenger presented me a warranty deed and I signed it, and had a conversation with Schellenger as he testifies ; I saw Hawley a few days afterward, and told him that he did not send down the note; he said no, that he had not the balance to send with it; when going to Denver, I told Hawley I wanted to settle up our business before I went; we had considerable conversation about it; he said you ought to forgive me that debt, and give me deed ; I objected, but afterward assented; he said, ‘ who will pay for recording,’ I said, ‘you will,’ he said, ‘no, I would hardly pay for recording for the property ’ ; he said, ‘ you can place it on record whenever you want to pay for recording ’ ; I saw him several times and. laughingly asked him about the recording of that deed ; in 1873, he came to my place of business in Denver, and said, ‘Barker, do you know you owe me about $1,000,’ I said, ‘what for?’ he said, ‘ the Dorchester mine; ’ he said in looking over papers he found an agreement that I was to pay him $1,000, if the property was not sold ; I told him there was a subsequent agreement; he said he thought so too ; he said, ‘ I did not know that you owed me until I found that agreement, I supposed the property was to be deeded back; ’ I told him there was another agreement; he said he thought .so too, and that he would look for it; when he returned he admitted there was another agreement, if not lost; I have not at any time since April, 1866 or 1867, admitted or agreed or promised to pay this amount.
The subsequent agreement was written at his request. He said if the property was not sold by April, 1867, he would be obliged to take $1,135, and he would rather have the property deeded to him than to have the money. We made a new contract; this is all the difference. The second contract provided that the property should be deeded to him if not sold. Hawley requested me to hold the deed until he could pay the balance. I kept it until the fall of [335]*3351873, and then did as he requested, paid for the recording and put it on record. The deed was delivered to Hawley. I handed it to him one day in my office in Denver, in October, 1873. He said he did not know as he could accept it; that he would have to see Mr. Teller first; he left it there.”
Hawley in rebuttal testified :
“ The deed was never tendered me until October, 1873. I refused to take it on the ground I stated to him, I wanted the money. Barker was to pay for recording the deed. When the lease was made to the Drake boys I did not claim any interest in the property. There was no subsequent agreement. I am positive of this, and did not make any admission of such subsequent agreement. I do not remember of making any promise to search for a subsequent agreement. I told him if he would show such agreement, I would admit it. I did not claim any interest in the property in 1867, 1868, and 1869. I do not think I claimed any interest in the property. Drake knew I had owned the property from my letter “to pay us ten per cent of the proceeds.” They wanted us to sign the lease. They paid us $2.00. Barker got no part of it. I had a conversation about the time Barker went to Denver; he said he had done considerable work on the mine.”
The court, of its own motion, gave the jury the following instruction:
“Upon an examination of the instrument sued upon, it shows in the judgment of the court that more than six years have elapsed since the cause of action accrued to the plaintiff, and is therefore barred by the statute of limitations, and if the plaintiff recover it must be upon a new, subsequent promise or acknowledgment of the existence of the preexisting debt, upon which the law will imply a promise; and the burden of proof is upon the plaintiff to show such promise or acknowledgment. If you believe, from the evi- ■ dence, that a subsequent agreement was entered into between the parties, relating to the same subject-matter, by which the money part of this agreement was omitted, and a deed [336]*336was to be executed to certain property in the agreement mentioned, and in pursuance thereof the deed was executed in accordance with such agreement, then the plaintiff cannot recover upon this instrument and your verdict should be for the defendant. If you find for the plaintiff, your verdict will be “we, the jury, find for the plaintiff and assess his damages at . If for the defendant, “we, the jury, find for the defendant.”
The court also upon motion of the defendant gave the jury the following instruction :
“ The court instructs the jury that the instrument dated June 18, 1866, which has been received in evidence, was barred by the statute of limitations before this suit was brought, and no recovery can be had upon the same, unless the defendant, within six years before the bringing of this suit, made a new promise, and the burden of that proof rests upon the plaintiff and no.t upon the defendant. The plaintiff must recover upon the preponderance of testimony. If the plaintiff claims the right to recover upon a new promise alleged' tp have been made by the defendant, and the testimony upon that point is so conflicting that the jury cannot determine whether such a promise was made or not, they must find for the defendant.”
The foregoing are all the instructions given. Neither of these instructions were excepted to. The jury found a verdict for the plaintiff in the sum of $1,136.
There was a motion for new trial by defendant, on the ground that the verdict was against the evidence and the law of the case, which motion was overruled and exception taken.
The principal errors assigned are, that the verdict was manifestly against the evidence and the instructions of the court, and in that the court erred in overruling the motion for a new trial.
Upon the evidence and under the instructions of the court, which were certainly not misleading, I fail to see how [337]*337the jury should have found- the verdict for the plaintiff which they did.
First. It must be admitted that the written contract sued on was, ’at the time of bringing the suit, barred by the statute of limitations, which was specially pleaded in the case. Nor do I think the evidence proves a new promise by the defendant at any time within six years next before the commencement of the suit, to pay any sum of money to the plaintiff upon any obligation arising out of the contract sued on. The only evidence of such promise is the testimony of the plaintiff himself, where he states that in April or May, 1868, he made a demand for the money, telling the defendant he ought to have the money or interest on it, and that the defendant then said, “ he would allow ten per cent interestand upon re-direct examination he says: “I don’t know that he (Barker) ever promised to pay it; he only promised to pay interest.” ‘ •
This evidence is flatly contradicted by the testimony of the defendant. Here, then, these two contradictory statements under oath stand against each other. Without any corroborating evidence on his part, can it be said that the plaintiff has made out his cáse \
Upon his cross-examination, the plaintiff, upon this point, further says: “I made demand for the money; he asked me why I had not made demand before ; T think I told 'him that I did not think I could• collect it; I did-not think the defendant was insolvent; I did not think I could make it on execution.”
The admission that the defendant asked him why he had not demanded the money before may, I think, be fairly taken, in connection with the testimony of both parties upon this point, to imply that the defendant was surprised at the demand being made, and had not reason to expect it. The reason given by the plaintiff, that he did not think he could collect it by execution, does not appear to be a very satisfactory one, inasmuch as when a creditor has ground for surmising'that he cannot recover a claim by [338]*338law, lie naturally makes a demand all the more promptly in hopes that the debtor will accede to the demand, voluntarily.
While this may be regarded as a small grain of evidence to corroborate the testimony of the defendant, it yet seems to me sufficient to turn the scale, and forbid the conclusion that the plaintiff has established the making of a promise to pay within the time limited by the statute.
Second. If a subsequent contract was entered into by the parties, whereby it was agreed that defendant should deed back to plaintiff the property in lieu of the money that by the first agreement was to be paid therefor, then the plaintiff was not entitled to recover even though he had established a former valid promise to pay the money under the first agreement.
That there was such a subsequent agreement thereby rescinding the former one, appears to me quite conclusive by a fair preponderance of evidence.
The plaintiff himself testifies : “There was a verbal agreement that if I would send Mr. Schellenger to Black Hawk, and Barker executed a deed to me for certain property, I would give him a certain note.” This statement taken-alone is calculated to convey the idea that the “certain property ” here referred to was other than the property in controversy, and that the “ certain note ” to be given was for the purchase-price. Upon further cross-examination plaintiff says: “ Schellenger prepared the deed; I suppose I gave instructions regarding the deed ; my recollection is not very clear, but I tried to get some property back that I sold, being the undivided one-sixth of three hundred feet ¡of the Dorchester lode; may be the claims five, six and seven east; I am not certain though.”'
This rather striking vagueness and want of recollection about the transaction has an air of pretense and evasion, notwithstanding which the witness does admit that he tried to get back the property that he had sold.
But .Mr. Schellenger makes perfectly clear the transaction [339]*339not only respecting the property deeded back to plaintiff, bnt as to the “certain note” referred to by plaintiff which he was to give to Barker. This witness says: “ I made out the deed March 11, 1869, at the request of Hawley to the undivided one-sixth interest of claims five, six and seven east of discovery on the Dorchester lode, and one-sixth interest in discovery claim and claim number one on the Columbus lode ;• he told me to prepare it and take it to Barker and have him sign it, that Barker had agreed to do so or pay him $1,100, I think it was, and as the money had not been paid he wanted a deed to the property.’ ’ After testifying to the execution of the deed and its being by Barker handed to witness, Schellenger further says: “ Barker then asked me if Hawley had sent a note of his for $60 by me to hand to him; I told him no ; Barker then requested me to leave the deed with him, stating that he would see Hawley and get the note and then hand him the deed; I left the deed with Barker, and reported the conversation to Hawiey the same day, and Hawley said its all right, I’ll see Mr. Barker, or words to that effect.”
The note referred to by plaintiff in his testimony above, to be “given ” to Barker upon execution of the deed, was clearly this $60 note, and which was altogether outside of the main transaction- respecting the reconveyance of the property in question. This is still further explained by Barker in his testimony wherein he says :• “He (Hawley) had my note for $60 ; he owed $111 for work ; $1,000 was the price of the property; $136 for work on the lode; I bought the Columbus lode for $100; last amount paid for work was $669.98 on April 15, 1867; one-sixth was $113.32 on last amount paid; a credit of $60 was allowed, leaving a balance due me of $51.66 ; * * * in 1869 Schellenger presented me a warranty deed, and I signed it, and had a conversation with Schellenger as he states; I saw Hawley a few days afterward and told him he did not send down note;' he said no, he had no balance to send with it.” It thus appears that the $60 note was to be given up to Barker in [340]*340adjustment of an outside or separate account between the parties.
In proof of the subsequent agreement to reconvey the property to Hawley, in place of the payment of the original purchase-price, the plaintiff admits that he tried to get back the property in question, because the money had not been paid for it; that he told Barker he would take back the property if he would deed it to him, and that he instructed Schellenger to prepare the deed for this purpose; while the testimony of Schellenger, as well as that of the defendant and the witness Burnell, is decisive on this point, and that the deed was executed accordingly.
Third. A question is made as to the complete delivery of the deed, and this, it seems to me, is the only question ■ upon which it is possible to make the decision in affirmance of the judgment, turn. True, the evidence shows that at the last moment, Hawley refused to receive the deed, acting under the advice of counsel. But if there was any thing lacking in respect to a complete actual delivery, it was solely because Hawley then refused to receive it, and not that there had been no offer to deliver it, for that it was tendered is testified to by Barker, who says: “I handed it to him one day in my office in Denver ; * * * * he said he did not know as he could accept it; would have to see Mr. Teller first; he left it there.” The only explanation offered as to the non-delivery and record of the deed, from the time it was executed, in 1869, to the fall of 1873, is given in the testimony of' Barker, who says: “ Hawley requested me to hold it (the deed) until he could pay the balance. I kept it until the fall of 1873, and then did as he requested, paid for recording and put it on record.”
This delay, then, - seems to have been as much the fault of Hawley as Barker, and was with the assent of both, and if it be true, and this is not controverted, that Barker, after ■some controversy as to who should pay for recording the deed, finally put it on record at the request of Hawley, the grantee, I am inclined to regard this, under all the circumstances, as a sufficient constructive delivery. Hence it fol[341]*341lows that in place of the purchase-price of the property' originally agreed to be paid Hawley, he agreed to take back the property; a deed for this purpose was made at his request, and after several years’ delay, to which he assented, the deed was placed upon record at his requst, so that the legal title to the property has thereby become absolutely vested in him, while by the judgment of the court he has also recovered the original price.
I cannot agree that upon the' evidence in the case the plaintiff should be allowed to have the property in controversy and the price of it also. To say that the property was thrust upon him against his will, and that therefore the defendant cannot be heard to complain, is to decide the very question upon which this whole branch of the case hinges; and upon this point I am forced to conclude that the agreement to take back the property, as between the plaintiff and defendant, was fairly carried out. The whole transaction seems to have been conducted rather loosely on both sides, and while I do not undertake to pronounce upon the equities of the case, I cannot be unconvinced that upon the issues joined in the suit, the evidence does not support the verdict rendered by the jury in the case. While it has been repeatedly held in this court that a verdict will not be disturbed where the evidence is conflicting merely, or depends on the degree of credibility to be given the respective witnesses by the jury, or where the plaintiff and defendant, as witnesses, contradict each other, and there is no other evidence in the case (Murphy v. Cunningham, 1 Col. 467; Mathews v. Glines, id. 472 ; Machette v. Wanless, 2 id. 169 ; Walling v. Warren, id. 434); yet where the verdict is clearly and manifestly against the evidence, it should be set aside in furtherance of justice. Keating v. Pedee, 2 Col. 526; Martin v. Hazard Powder Co., id. 601.
I think this is a case that comes within the latter rule. There is shown, in my opinion, not merely a want of preponderance of evidence, but lack of proof on behalf of the plaintiff to reasonably support the verdict upon the issues joined in the case.