Ferst v. O'Neal

• Citation: 108 Ala. 250,19 So. 307
• Court: Alabama Supreme Court
• Decision Date: 14 January 1896
• Parties: FERST ET AL. v. O'NEAL.

19 So. 307

108 Ala. 250

FERST ET AL. v. O'NEAL.

Supreme Court of Alabama

January 14, 1896

Appeal from circuit court, Henry county; J. M. Carmichael, Judge.

Action by M. Ferst Sons & Co. against W. C. O'Neal. From a judgment refusing a new trial, plaintiffs appeal. Reversed and rendered.

A. E Pace, for appellants.

Espy &amp Farmer and H. L. Martin, for appellee.

COLEMAN J.

The appeal is prosecuted from the judgment of the court overruling a motion for a new trial. The ground of the motion which requires consideration is that the verdict of the jury was contrary to the evidence. In the case of Cobb v Malone, 92 Ala. 630, 9 So. 738, it was declared as the proper rule "that the decision of the trial court refusing to grant a new trial, on the ground that the verdict was contrary to the evidence, will not be reversed, unless after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust." This rule has been invariably reaffirmed since its adoption, whenever the question has been before us. Morris v. West, 101 Ala. 534, 14 So. 364; Holland v. Howard (Ala.) 17 So. 35. Giving to the appellee (the defendant) in this cause the full benefit of the rule in its every phase, and we are constrained to the conclusion, by the facts and circumstances which are uncontroverted, that a new trial should have been granted. We do not know what may appear on another trial, but the evidence in the record before us satisfies us beyond all reasonable doubt that the defendant has obtained an advantage from a mere error in the transportation of figures, which ought not to be allowed. On the 30th of October, 1893, the defendant was indebted to the plaintiffs in the sum of $138.28, and on November 3, 1893, he inclosed them a check for that amount, "to settle bill," 2 per cent. off. In this letter he made inquiry as to salt, etc., November 6th, the plaintiffs acknowledged receipt of remittance of $318.28 by letter of defendant of November 3d, for which they allowed him credit with the discount, and also replied to the inquiry as to salt. The defendant's letter of the 3d, containing the check, claimed the discount, and made inquiry after salt. The plaintiffs' testimony, and that of the stenographer in typewriting, is clear as to how the figures 1 and 3 were transposed. That this letter was a reply to ...