Holloway v. Harper , 108 Ala. 647 ( 1895 )

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 plaintiffs’ 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 plain tiff 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 jury might believe upon the question of ratification. — Singer Mfg. Co. v. Belgart, 84 Ala. 519. The effect of the charge was to withdraw from the jury material and relevant testimony, which, if believed, entitled the defendants to a verdict, even though John Harper had no authority, as postulated in the charge; to demand and receive the money, which must be understood as relating to the time of the payment. A charge which authorizes or requires a verdict for' one party, upon a finding in his favor, upon one or more issues, when there is another which, if found for the other party, entitled him t© a verdict, is manifestly erroneous. — Cobb v. Malone, 86 Ala. 571.

Under the existing state of the evidence the charge ought to have been refused.

Reversed and remanded.