Halloway v. Harper

• Decision Date: 19 November 1895
• Citation: 108 Ala. 647,18 So. 663
• Parties: HALLOWAY ET AL. v. HARPER.
• Court: Alabama Supreme Court

18 So. 663

108 Ala. 647

HALLOWAY ET AL. v. HARPER.

Supreme Court of Alabama

November 19, 1895

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

Action by Robert Harper against Halloway & Gilchrist, partners in business, to recover a certain sum of money which was deposited by the plaintiff with the defendants subject to plaintiff's demand. There was a verdict and judgment for plaintiff, and defendants appeal. Reversed.

M. E Milligan, for appellants.

P. W Hickman, for appellee.

HEAD J.

There was a verdict for the plaintiff, and the defendants moved for a new trial upon the ground that the verdict was contrary to the evidence. The testimony upon each of the issues of fact was in sharp and irreconcilable conflict. The presiding judge approved the verdict; and in view of the superior advantages he has over us in supervising verdicts based upon conflicting evidence, we cannot say that he erred in denying the motion simply because more witnesses testified in favor of the defendants' than in favor of the plaintiff's theory. Weighing evidence does not consist merely in counting witnesses.

The only other assignment of error is based upon the giving of an instruction to the jury at the instance of the plaintiff. That charge required the return of a verdict for the plaintiff if the evidence was equally balanced on the question of John Harper's authority to demand and receive the money from the defendants, provided the money belonged to the plaintiff at the time it was deposited. John Harper, to whom the defendants had paid the money deposited in the name of his brother, the plaintiff, testified that he informed the plaintiff of the payment, and that the latter not only did not object, but expressly assented thereto, by saying it was all right, and they would straighten the matter between themselves. This, if true, constituted a complete ratification of the payment to John Harper, thereby making it as efficacious to discharge the defendants as if the person to whom the money had been paid had been duly authorized in advance to receive it. It is true the plaintiff contradicted the witness on this point, but this raised an issue of fact for the jury, the credibility of the witnesses being for their sole determination. The charge given entirely ignored this feature of the case, and required a verdict for the plaintiff in the event of certain other findings, without reference to what the...