Clanton v. Coward
Before: Searls
Synopsis
Practice—Verdict—Conflict of Evidence.—Where there is a substantial conflict in the evidence, a verdict will not he disturbed on the ground of insufficiency of the evidence to sustain it.
Id__Power to Remit Excess.—The court may allow the plaintiff to remit from a verdict an excess over and above the amount demanded in the.eomplaint, and to take judgment accordingly.
Suretyship—Reimbursement—Pleading. —In an action by a surety on a promissory note against Ms principal for reimbursement, the suretyship not appearing on the face of the note, a complaint which avers that the plaintiff signed the note as a surety only, and for the accommodation of the defendant, need not allege a request from the defendant to the plaintiff to pay the same.
Appeal—Affidavit.—An affidavit which is not embodied in any statement or bill of exceptions cannot be considered on appeal.
Searls, C. Action on a promissory note made by plaintiff and defendant. Plaintiff had verdict and judgment.
The promissory' noté in question was joint and several in form, and made by plaintiff and defendant to one A. D. Porter for $4,500 and interest, which sum of money was borrowed from Porter and used in the purchase of a marble yard, the deed for which was taken in the name of defendant.
' Plaintiff and defendant were engaged as partners in baying and selling real estate in Yolo County, the former furnishing capital, and the latter rendering services in the business, of the firm, keeping or causing to be kept the books of account of the partnership transactions.
■ The theory- of plaintiff is that the purchase of the’ marble yard was an individual transaction on the part of defendant, having no connection with the partnership affairs, and that in joining with defendant in malting the note. in - suit he did so merely to accommodate defendant, who received the money borrowed to his own use, and that he, plaintiff, having paid the note, he is entitled to recover the amount so paid with interest.
Defendant, on the other hand, contends that the purchase of the marble yard was a partnership venture, and that the money was borrowed and used, and the note given for partnership purposes. Plaintiff, in his complaint, demands judgment for the amount by him paid on the note, viz., $4,650.
The jury rendered a verdict in favor of plaintiff for $4,972, being $322 in excess of the sum demanded in the complaint.. [375]Plaintiff remitted the excess and took judgment for the $4,650. After the entry of judgment defendant moved to set aside the verdict on the ground that it is not within the issues, is inconsistent with the same, and in excess of plaintiff’s demand, which motion was denied, and the appeal is from final judgment, from an order denying a motion for a new trial, and from the order refusing to set aside the verdict.
The first point made by appellant is that “ the verdict is not sustained by the evidence.”
There was a substantial conflict in the evidence on every point essential to a recovery, and upon principle so well settled as not to require reference to the large number of cases in which the doctrine has been held, we are not at liberty to interfere with the verdict of the jury on that ground.
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