Lowrey v. Keeran

56 Ind. 252

• Court: Indiana Supreme Court
• Decided: May 15, 1877
• Status: Published

Opinion

Perkins, C. J.

Suit by appellant, against appellee, on an alleged parol contract to pay him five hundred and twenty-five dollars.

Answer in three paragraphs :

First. General denial;

Second. Payment; and,

Third. Payment, with specifications of manner of payment.

Reply in denial.

Trial by the court, and a finding and judgment for plaintiff for twenty-five dollars. A motion for a new trial, by the plaintiff, was denied.

The plaintiff appeals.

He claims the judgment is for too small an amount.

The question is one of fact, determinable by the court upon the evidence alone.

Appellant’s counsel review it, and come to the conclusion that it preponderates, as it appears on paper, in the bill of exceptions, in favor of the plaintiff.

"We incline to think the plaintiff’s counsel are right in this; but the preponderance of evidence on paper is but a numerical preponderance, or a preponderance in weight, inferred from quantity or bulk; while the legal preponderance is one of weight of items or parts of testimony; and the court below has great advantage over this court in estimating the relative weight of different portions of the evidence given in a cause. That depends much on the credibility of the different witnesses. The credibility of a witness can not be well determined by reading the testimony of the witness, nor by ¡hearing it, even; but only by hearing it and seeing the witness. The court may see falsehood, want of information, concealment, and prevarication in a witness, when it can not read it or hear it.

Acting upon the uniform judicial rule, in declining to disturb a finding of the court below, where there is conflict in the evidence, we must affirm the judgment.

Affirmed, with costs.