Basse & Bro. v. Denniston , 39 Tex. 293 ( 1873 )

Walker, J.

We are not prepared" to say that the verdiet of the jury in this case is not right, but the testimony of J. E. Moss, the principal witness for the appellee, is so indefinite and uncertain that we think it very probable the jury did not understand it, and have been led into a mistake. The receipt dated July 23, 1870, is “for the balance due on draft,” $1319

Before the jury can find against the appellants, with this receipt before them, they must find that there was more than one draft passed between Slator and Basse & Bro., or that J. E. Moss had no authority to collect the money and give the receipt. The plaintiff below amended his petition and avers that there were more than one draft placed in the hands of defendants for collection, and that the drafts were of the aggregate value of $6000; but this amount must be clearly proven to contradict the receipt of July 23, 1870. We offer no comment on the weight of evidence; but that the verdict is the result of mistake in the facts is so probable in this case that we think a new trial should have been granted. The judgment of the District Court is therefore reversed and the cause remanded.

Beyebsed and demanded.