Taylor v. Page

7 Ky. Op. 493, 1874 Ky. LEXIS 167

• Court: Court of Appeals of Kentucky
• Decided: February 11, 1874
• Status: Published

Opinion

Opinion by

Judge Pryor:

The testimony is SO' conflicting upon the issue presented that this court cannot disturb the verdict rendered.

It was the province of the jury tO' determine the question of fact, and having done so; we cannot say that the conclusion arrived at i's palpably against the weight of the evidence. The fact that one of the plaintiffs, in his examination as a witness, was permitted to detail a conversation he had with his clerk as to what the contract was, although incompetent, did not prejudice the rights of the appellants.

This' witness had already sworn that no such contract had been made as alleged, and his statement to¡ the clerk was' a mere repetition, in substance, of what the witness had stated when under oath. The court properly refused the filing of the amended answer, as no such contract as is alleged can be established by proof of the custom of the town. Other persons having made similar trades will not justify or authorize the conclusion that such was the contract between those parties.

The facts of this case have alone been considered, as the instruction constitutes no part of the record; and it may well be doubted whether the evidence should be regarded, as each counsel has prepared a separate draft of the testimony, and the two constitute the bill of exceptions, the one conflicting with the other as to what was proven on the trial.

The judgment is affirmed.