Parker v. Walden

By the Court.

Starnes, J.

delivering the opinion.

[1.] By three witnesses, the plaintiff in the Court below proved that the defendant lived with him during the time alleged, .and that her board, &c. was worth the amount charged. An implied promise to pay was thus raised; and on this he relied for a recovery. By a similar number of witnesses, the defendant proved that her services, and the labor of her two little negro boys; the use of her horse, cart, oxen, stock, &c., by the plaintiff, were worth fully as much as her board. And so far, if the witnesses are equally credible, the testimony would seem very much balanced.

John M. Benson was then introduced by the defendant, and his testimony seems, if credible, to authorize a strong presumption that the defendant was not to pay the plaintiff for her board, inasmuch as the latter said to the witness that he did not expect to charge her. But it was insisted that. the testimony of Benson should be received, with suspicion, because of his bias — he himself acknowledging that he was unfriendly to the plaintiff.

Let this be conceded, and yet the following considerations ■and circumstances cause the scales of evidence to preponderate -against the plaintiff:

1. The defendant went to the plaintiff’s house with her stock, cart, provisions, furniture and little negroes; the pork she carried with her was consumed by the family of plaintiff; her stock used by them; her oxen and cart, employed by him paying for the rent of plaintiff’s homestead; and the services of herself (who, though aged, is described as of “ unsurpassed industry, and almost always at work, carding, washing, &c.”) rendered about the premises. All of which seems to show, that the parties made a sort of common account, in house-keeping.

2. In the letter of plaintiff, which was. in evidence, we find him saying, “if you can forgive what has been done;- if you will come back I will stop the suit,” &c.

What was. it she was asked to forgive. ?: What the wrong which had been done, and which needed forgiveness ? The context furnishes the answer, and shows that.that.wrong was. the claim, by suit, of payment for defendant’s board: for this is the injury which he promises to redress, if she will forgive and come back. He adds, that he would lot the suit go no further, if she would come and live as she did before. And this, under the circumstances, seems an additional confirmation of the •opinion, that the defendant was before living with him in a way ithat made a charge for board improper and unjust.

Again: the plaintiff repeats, that he “is truly sorry for what has passed,” and .begs to be forgiven.

These considerations, in our opinion, might very properly have influenced the Court below to hold, that there was a con- ■ siderable preponderance of testimony in favor of the defendant ; •and accordingly; in view of the act of the last'Legislature, to •have granted a new trial. Especially do they render it proper ithat we should not control the discretion of the Circuit Judge, who had the witnesses before him, and being more of thevicinage, as it were, could better judge than we óf their, characters, and the value of their testimony. It has been, often, said, that for such reasons as those last specified, a reviewing Court should be ever cautious in controlling the.Circuit Judge who grants a new trial.

We take occasion to add, that we do not regard the letter of the plaintiff, to which we have referred, as improperly admitted, ■because written by way of a compromise, as was insisted in the argument. It does not bear the character of an instrument by which the plaintiff was endeavoring to buy his peace. It has the impress, indeed,- of a, just and Christian frame of mind, desirous “of peace and friendship,” as the plaintiff expresses it; and its whole tenor is creditable to its writer: but it was no offer of compromise, in the legal sense of the term, and was properly admitted as evidence.

Judgment affirmed..