Branch v. Dever ( 1857 )

Wheeler, J.

The evidence is conflicting as to whether the plaintiff violated his instructions or not. According to the testimony of some of the witnesses, and, perhaps, the weight of evidence, he did. But other witnesses testified that his instructions were to do with the beeves as he thought best. The evidence leaves no doubt that he had such a discretion in a certain event. It does not clearly and certainly appear that what he did was not for the best; or what he honestly thought, or had reason to think, was the best he could do for his employers under the circumstances. It was for the jury to weigh the evidence, and decide whether he had violated his instructions ; and it is not enough that their verdict may appear to be contrary to the weight of evidence. It was not without evidence to support it; and is not, therefore, contrary to the evidence. It was a case of conflict of evidence; and the Court did not err in refusing a new trial.

Judgment affirmed.