Rawls & Rawls v. Scott

44 So. 386, 151 Ala. 309, 1907 Ala. LEXIS 542

• Court: Supreme Court of Alabama
• Decided: June 13, 1907
• Status: Published

Opinion

DENSON, J.

This suit is based on a note for $500 executed by the defendants to the plaintiffs. The material defense set up was that before the commencement of the suit the defendants paid to plaintiffs $1,750 in full settlement of all demands held by plaintiffs against defendants, including the note sued on. The contested fact on the trial was whether or not the note sued on was included in the alleged settlement, and on the issue the evidence was sharply in conflict. The jury found in favor of the defendants; but the court, on motion made by the plaintiffs, on the ground, among others, that the verdict was contrary to the evidence, set aside the verdict and granted a new trial. From the judgment setting aside the verdict and granting a new trial the appeal was taken.

The trial judge had the witnesses before him, and heard their testimony and observed their manner of testifying, and therefore had better opportunity for pronouncing upon its weight and convincing power than we have. In.other words, he had evidence before him that-is not before us, and could not be brought here. Upon an examination of the evidence in the record we cannot say that it is plainly and palpably in favor of the verdict, and we will not reverse the judgment setting aside the verdict granting a new trial. — Smith v. Tombigbee & Northern Ry. Co., 141 Ala. 332, 37 South. 389.

Affirmed.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.