Sumner v. Jones

Berry, J.

The principal contention of the plaintiffs upon these appeals is, in effect, that the findings of the jury are not supported by the evidence. The claim is not that there was mo testimony going to support them, but that it was false, as appears from other testimony. If anything can be regarded as settled in the law, it is that the credibility of testimony is peculiarly for a jury. As a general rule, their decision upon this is final. There may be cases in which the verdict of a jury will be set aside, because the evidence upon which it rests has no reasonable tendency to support it; but this would not be in a case like this at bar, in which there is simply a conflict of ■evidence,upon which a pure question of credibility is presented to the jury. Upon these appeals, we see no reason whatever for departing from the general rule mentioned above. This ■disposes of the positions taken by the plaintiffs as to the ■alleged agreement for five per cent, discount from the lumber furnished by them to defendant, and as to the effect, by way •of accord and satisfaction, of the transaction of June 19th. The effect of that transaction was to be determined upon a •consideration of its surroundings. As to these the testimony was conflicting, so that the question presented was not one •of law, upon an'admitted or uncontroverted state of facts, *314 but a question of fact, as to whether any accord and satisfaction, or full settlement of the matters between the parties, was intended and effected or not. Obviously, the receipt put in evidence did not necessarily establish the accord and satisfaction contended for.

This is an action undei4 Gen. St. 1878, c. 90, § 8, for the' foreclosure of plaintiffs’ lien for materials furnished by them to defendant for the construction of a dwelling-house. It is-not, therefore, an action for the recovery of money only; nolis it made such, to any extent, by the fact that defendant, in his answer, sets up matter (controverted in the reply) showing not only that the plaintiffs have no cause of action, but-that they are thereupon indebted to him in a balance for which he prays judgment.

Not being an action for the recovery of money only, the plaintiffs were not, as a matter of right, entitled to a jury-trial, but, as provided in Gen. St. 1878, c. 66, § 217, the-case was triable “by the court, subject, however, to the right-of the parties to consent, or of the court to order, that-the whole issue or any specific question of fact involved therein be tried by a jury.” It appears from a recital in the-judgment, as well as from one in the finding of the trial court, that three specific questions of fact were submitted to-the jury by consent of parties. To this submission no objection appears to have been made by anybody. The issues not-thus submitted to the jury were tried by and found upon by the court. This is just such a course of procedure as is provided for in section 217, above cited, and is unquestionably proper. But even if the plaintiffs, as they insist, did not consent to the submission of the three questions to the jury, the-result would be the same, for the case would then be one in which the submission was ordered by the court without th& consent of the parties, and this also is authorized by section 217.

This disposes of the appeals, and the judgment and order refusing a new trial are accordingly affirmed.