McNeill v. Stitt

CHIPMAN, P. J.

Action to recover $358.14 for certain lumber, shakes, and posts alleged to have been sold by plain

[14]

tiff to defendant. The court found the facts for plaintiff as alleged in the complaint and gave judgment accordingly. Defendant appeals from the judgment and from the order denying his motion for a new trial.

The trees from which the lumber, shakes, and posts' were produced grew upon land which formerly belonged to one Hagans, between whom and one Sartain there was an • agreement that the latter might cut from the land the timber growing thereon, the stumpage to be paid for as ■ follows: Lumber, $1 per 1,000 feet; posts, $2.50 per 1,000 feet; shakes, $1 per 1,000 shakes; and some other products not involved. Hagans sold the land to plaintiff and assigned to her the above agreement, and she was recognized as succeeding to Hagans’ right thereunder. There is evidence that a certain quantity of lumber, posts, and shakes cut from the growing timber on this land, amounting to the sum claimed in the complaint at the rates fixed in the agreement, was delivered to defendant by Sartain and that defendant agreed to pay plaintiff for the same. The evidence was quite sufficient to support the findings. Defendant testified that he gave Sartain credit on his bSoks for the merchandise, and that Sartain was then and still is indebted to him over and above the amount claimed by plaintiff, and that he never agreed to pay plaintiff anything on account of the stumpage and had nothing to do with her in the transaction. His testimony is in sharp conflict with that of plaintiff’s witnesses, but it cannot be regarded as going further than to produce a conflict, in which case the appellate court cannot interfere with the findings. Defendant claims that plaintiff’s case rests upon the testimony of a single witness; and, as he was disputed by the testimony of defendant, the plaintiff has failed to establish her case by a preponderance of evidence. We do not think defendant is sustained in this claim. The evidence before the court in support of plaintiff’s claim did not come from the testimony of a single witness. But, if it did, the trial court still had the right to reject the testimony of defendant’s witness and receive that of the plaintiff’s witness. Preponderance of the evidence does not necessarily depend upon the numerical preponderance of the witnesses. (Code Civ. Proc., sec. 2061.)