Booth v. Rives ( 1855 )

Catón, J.

The controversy in this case is purely one of fact, and we think the finding of the court is sustained by the evidence. It is not controverted that the money sued for was received by the defendants below, of the plaintiff’s wife, in 1847. And the proof is positive that it was not placed to the plaintiff’s credit on the defendant’s books at the time ; and it is altogether probable that it never was. The weight of evidence clearly is, that the amount received was $350. Some six months after, there was placed to the defendant’s credit $300 ; and in the course of the year other considerable sums; what these credits were for does not appear. It may or it may not be that this three hundred dollar credit was for the money got of Mrs. Rives, but we cannot say that it was so, nor is there any strong presumption that such was the case; and indeed we think the probability is the other way. The credit is for a less sum and at a much later period. Afterwards the parties had a settlement, and nothing was said about the money obtained from Mrs. Rives.

In 1847, when the plaintiff left home to be absent for some time, he left with his wife seven hundred dollars to pay his share of a note which he had executed jointly with one Rhea, which was to fall due before the plaintiff was expected to return. Rhea was to call on the plaintiff’s wife and get the money and pay the note. At the proper time he did call for the money, but Mrs. Rives said she had for him but three hundred and fifty dollars, which he got. When complaining of this, one of the defendants explained that he had previously got the other three hundred and fifty dollars of Mrs. Rives, and applied it on the indebtedness of the plaintiff to the defendants. Rhea never informed the plaintiff of this till their final settlement several years after, and long after the final settlement which had taken place between the plaintiffs and defendants, and at which no mention was made of this money obtained from Mrs. Rives, so far as we are informed. The probability that Rives was informed of this payment to the defendants on his return home and before his settlement with the defendants, is no doubt entitled to weight; and some vague threats made by the plaintiffs when complaining of the conduct of the defendants, are also entitled to consideration. But we do not think these entitled to such weight as to justify us in reversing the finding of the court below setting in the place of a jury. It is at any rate not that clear case of a finding against the evidence as the rule of law requires to justify this court in reversing the judgment.

The judgment must be affirmed.

Judgment affirmed.