Witherby v. Thomas

Morrison, C. J.: This is an action upon two promissory notes, executed by defendant and payable to plaintiff. The execution of the notes is not denied, but defendant sets up in his amended answer and cross-complaint two contracts entered into between the parties to the action, one of which bears date May 8th, 1870, and the other the 26th day of August, 1875.

[11]The first of these contracts recites, that the party of the first part (plaintiff) has furnished and delivered 363 head of cows to the party of the second part (defendant) for the term of five years, the same to be kept and taken care of by defendant, and at the expiration of the period of five years to be redelivered to the plaintiff, “ together with one-half of the increase.”

The second contract, after referring to the first, and enumerating the number of cattle delivered the defendant thereunder, proceeds as follows: “And whereas, the term for which said stock was let having expired, both parties wish to renew the same contract and extend the time thereof: Now, therefore, it is hereby agreed between the parties hereto, that the party of the second part shall keep and retain all of the original stock, and the increase thereof now due from him to the party of the first part, for the term of five years from this date, or until the same arc disposed of by the party of the first part, upon the same terms and conditions upon which the stock was originally taken, to wit, for one-half the increase thereof; it being distinctly understood that the party of the first part has and retains the right, at any and all times, to sell any or all of the original stock, or any or all of his share of the increase thereof at his pleasure.”

Several matters constituting counter-claims are set up in defendant’s answer and cross-complaint, arising out of alleged sales b)r plaintiff of stock in which the defendant was interested as part owner, the payment of taxes, and other matters particularly set forth in the pleading. All of the matters contained in defendant’s cross-complaint are fully answered and denied by the plaintiff. The jury found in favor of the plaintiff for the amount of the two promissory notes with interest, and plaintiff had judgment therefor. Defendant made a motion for a new trial, which was denied, and this appeal is taken from the judgment and order of the Court below denying defendant’s motion for a new trial.

1. The first point made on the appeal is, that the verdict was contrary to the evidence. It is sufficient for the Court to say, in disposing of this point, that there was a substantial conflict in the evidence, and in such cases it is well settled that we will not disturb the verdict. The case was peculiarly one for the