Turano v. Bailey

FINCH, P. J.

In appellant’s opening brief it is said: “Plaintiff . . . sued defendant . . . for the sum of $557.81, the amount alleged due from respondent on a carload of grapes No. PFE 14632, alleging it was one of fifteen cars which respondent had purchased from appellant and which had not been paid for. Respondent filed a cross-complaint, alleging that plaintiff was indebted to him in the sum of $960.64, moneys advanced by defendant for plaintiff’s use and benefit, denying the fact that any sale had been made to defendant. The jury denied plaintiff any relief and brought in a verdict for the defendant in the sum of $960.64, plaintiff moved for a new trial, which was denied and now appeals from the judgment of the court. The sole issue to be determined is whether or not the transaction in the sale of the fifteen cars, of which No. PFE 14632 was one, constituted a sale from appellant to respondent or whether the respondent was merely acting throughout as appellant’s agent.”

[404]

The evidence is substantially conflicting upon the issue stated and therefore the implied finding of the jury in favor of defendant is conclusive on appeal. The defendant testified positively that he did not purchase the grapes in question, but that he sold them for the plaintiff pursuant to an agreement between the parties to the effect that he should do so. Appellant argues at considerable length that such testimony of defendant is discredited and overcome by other evidence. The argument goes to the weight of the evidence and defendant’s credibility as a witness rather than to the sufficiency of the evidence to support the verdict. The jury, in returning a verdict for the defendant, and the trial court, in denying a new trial, impliedly found against appellant’s contention. The matter being peculiarly within their province, their finding cannot be disturbed by this court.

Exception is taken to the giving and refusing of instructions by the trial court. This appeal was taken pursuant to the provisions of section 953a of the Code of Civil Procedure. The instructions are not included in the reporter’s transcript, certified by the trial judge, but in the clerk’s transcript, certified by the clerk only. Not being authenticated as provided by law, the instructions cannot be reviewed on this appeal.

(Tracy Brick etc. Co.