Jones v. Bryan

Sharpstein, J.: This action is brought to compel the specific performance of an alleged unwritten contract between plaintiff and defendant Bryan, to convey certain lands to plaintiff, which, before suit; had been conveyed by defendant Bryan to defendant Powell,, who, it is alleged, had notice of said unwritten contract.

Defendant Bryan, in his answer, denies that he ever entered into any such contract, or that defendant Powell ever had notice of it. Defendant Powell, in his answer, denies that he purchased with notice, and alleges that he is a bona fide purchaser for value.

Both of them testified, on the trial, to the facts stated in their answers. The plaintiff, on the other hand, testified to the facts set up in his complaint, and introduced some testimony which tended to corroborate him.

[479]The appellant claims that the judgment should be reversed, on the ground that the weight of evidence is in favor of the plaintiff' and against the defendants, and that the whole of the evidence taken together supports the allegations of the complaint. We cannot assent to those propositions. The testimony is conflicting upon the material issues raised by the pleadings, and it was for the Court below to determine to which side the weight or preponderance of it inclined. This has been held too often by this Court to require any citation of authorities in support of it.

Judgment and order denying a new trial affirmed.

Myrick, J., and Thornton, J., concurred.