Andrews v. . Rigsbee ( 1889 )

Merrimon, C. J.

The pleadings put in issue whether or not the plaintiffs had any brick, as alleged by them, and the evidence of ownership, was more or less in conflict. Although Manning may have said to the plaintiff Farthing, “ I do not care whom I deliver Andrews’ brick to, or to whom I pay the money for his brick. It is immaterial to me whether they are delivered or paid for to you or Andrews,” it did not follow, as a necessary consequence, that the jury should respond to the first issue “Yes,” because the conflicting evidence before the jury might, but for the instruction of the Court, have led them to conclude and find that the plaintiffs did not own the brick in controversy. The evidence was perhaps strong, but not conclusive evidence of the ownership of the brick, as the Court seems to have supposed.

The agreement in writing read to Farthing was no more than some evidence — it was not conclusive. The defendants expressly denied in their answer that the plaintiff Andrews had complied with its material terms, or had made or owned any brick under or by virtue of it.

The defendants are entitled to a new trial, and we so adjudge.

Error.