McCoy v. Wily

50 Ga. 126

• Court: Supreme Court of Georgia
• Decided: July 15, 1873
• Status: Published

Opinion

McCay, Judge.

We cannot say that the verdict in this case is so contrary to the evidence as to justify this Court in overruling the judgment of the Judge of the Superior Court refusing a new trial. We incline to think the plaintiff had a better case than his evidence presents. But as it stands, his proof is not such as to require a verdict. The mule could hardly be so completely worthless on Monday, without the witness noticing some defect on Saturday, unless something intervened on Sunday. The two witnesses who testified to the mule having the glanders, do not, as they tell it, fix a time that makes it necessary the mule should have been diseased at the trade. There is, therefore, some defect in the evidence. It does not show anything'but a probability that the mule was diseased at the time of the warranty. Nor is that probability so strong as to force the conviction of its truth. There is fair room to suspect that the plaintiff is trying to put upon the defendant a misfortune which may, in fact, have been wholly his own. This the jury seem to have thought, and whilst it is possible for a fair-minded man to think otherwise from the testimony, yet, in our opinion, the proof is open to this view. We cannot, therefore, under the established rule, undertake to reverse the judgment of the Court refusing a new trial.

Judgment affirmed.