Whitcomb v. Thomas

66 N.W. 818, 47 Neb. 909, 1896 Neb. LEXIS 652

• Court: Nebraska Supreme Court
• Decided: April 9, 1896
• Docket: No. 6440
• Status: Published

Opinion

Noryal, J.

James Whitcomb, Waldo Whitcomb, and Getty W. JDonery are the proprietors of the Bank of Pender. Jacob Thomas commenced this action against them to recover the sum of $129.14, with interest thereon, which he alleges to be the balance due him upon his open account with the bank. In their answer they deny that they are indebted to the plaintiff in any sum whatever, and allege that he is indebted to them upon account in the sum of $13.85, and the further sum of $1,357.60 upon three promissory notes executed by the plaintiff, and which are set out in the answer. The defendants asked judgment against the plaintiff for $1,371.45, with interest. The reply denies that there is anything due from plaintiff to defendants on account, and pleads want of consideration as to a portion of the amount represented by the notes mentioned in the answer, and payment of the remainder of said notes. From a verdict and judgment for the plaintiff in the sum of $78.70 the defendants prosecute error.

The only complaint in this court is that the verdict is contrary to the proofs adduced on the trial. A careful perusal of the testimony discloses that it is conflicting upon every material issue presented by the pleadings. The evidence of the plaintiff, when considered without reference to that introduced by the defendant, fully supports the verdict. It is the province of the jury, and not ours, to pass upon the credibility of the witnesses and to weigh the testimony. The verdict is not so manifestly contrary to the evidence as to show it to have been the result of either passion or prejudice, hence it cannot be set aside, and the judgment must be

Affirmed.