Alley v. Booth

• Decision Date: 01 January 1856
• Citation: 16 Tex. 94
• Parties: WILLIAM ALLEY v. JOHN BOOTH.
• Court: Texas Supreme Court

16 Tex. 94

WILLIAM ALLEY

v.JOHN BOOTH.

Supreme Court of Texas.

1856.

Where testimony is conflicting, the jury are the proper judges of the credibility of witnesses and the weight of evidence; and in such cases this court has uniformly declined to reverse the judgment because a new trial was refused. [7 Tex. 556;8 Tex. 439;22 Tex. 37;28 Tex. 15.]

Appeal from Colorado. This was a suit by the appellee againt the appellant, to recover the price, under a contract, of building a house. The defendant pleaded defects in the work and incompleteness of the job, and claimed pay for board, and alleged payment in part; he also denied that he made any contract with the plaintiff. On the trial it appeared that the price of building the house, by the contract, which was verbal, was $250; but there was conflict in the testimony as to whether the contract was made with the plaintiff alone or with him and one McKinnon. McKinnon was called as a witness by the defendant, and testified that he and the plaintiff were working together at the time, and that the contract was made with them both; that defendant had paid him $35 on the job, and had paid the plaintiff $22; the jury evidently did not give full credit to the testimony of this witness; its tenor and the witness' manner had a tendency to discredit it to some extent. A witness for plaintiff stated that he worked on the job for ten days; that he was employed by the plaintiff, and that he considered him the boss carpenter; looked for pay to the plaintiff, and plaintiff paid him. It was not clear from the testimony whether the defendant was to board with the workmen or not, nor whether he did board them, or how long. McKinnon said the plaintiff had estimated the job at $250, but that it was worth $500. A witness for plaintiff estimated the defects in the work at $40. It appeared that the work had been delayed by the drunkenness of the plaintiff and McKinnon.

The jury found for the plaintiff $173.50. Motion for new trial overruled.

G. W. Smith, for appellant.

J. H. Robson, for appellee.

WHEELER, J.

Whether the contract was made with the plaintiff, or with him and McKinnon jointly, and also the amount which the plaintiff was entitled to recover in case it was made with him singly, were questions of fact, which it was for the jury to decide. The evidence conflicting, it was a proper case for them to judge of the credibility of witnesses and the weight of evidence. It is one of that class of cases in which...