Wesley v. Jacobs , 38 Iowa 573 ( 1874 )

Day, J.

ebaotiob: conflicting evidence. — -The only point made is that the verdict is not sustained by the evidence. If it was sustained much less satisfactorily than it is, we would not feel inclined to interfere with the action of the trial court refusing to grant a new trial. The testimony is in irreconcilable conflict. Plaintiff testifies positively that there was a final settlement and an absolute agreement to convey the land in question.

He is corroborated, at least circumstantially, by one Stephenson, who testifies that he called upon defendant with plaintiff; that plaintiff asked defendant to make a deed for the land in controversy ; that defendant was in his field cutting wheat, and said he could not leave his work then, but that he would come to Wilton and make a deed, and that he said nothing about any payment to be made by plaintiff.

Upon the other hand the defendant denies the absolute agreement to convey, and testifies that the transaction was as set forth in his answer. He also introduced one Tibballs who testifies that Wesley was often out to look at the land previous to February, 1871; that he then said lie would not be out anymore; that he had sold the land to Jacobs; that he thinks plaintiff was not out after that time; that he had a difficulty with plaintiff, and does not think much of him.

Defendant also introduced his son, who testifies that, during the conversation between plaintiff and his father, defendant offered the 80 acres in controversy to plaintiff in case he would pay the firm debts; that plaintiff said he would see about the matter, and some days afterward said he would not take the land.

Plaintiff, being recalled, denied that he told Tibballs he had sold the land to Jacobs, and stated that he had some difficulty with Tibballs, and had sued him. This is the substance of all the material testimony. It is very evident that it does not present a case for the reversal of the judgment of a trial court refusing to grant a new trial. See Schrimper v. Heilman, 24 Iowa, 505; cases cited in Dillon’s Digest, p, 607; Hammond’s Digest, p. 614; Lacy’s Digest, p. 179.

Affirmed.