Mendell v. French

Headnote

Where the evidence is conflicting, the finding of the justice will not be disturbed on appeal from a district court, unless the evidence against the finding so greatly preponderates as to warrant the presumption of corruption, bias, or partiality.

It is not enough, in such a case, to warrant a reversal of the judgment, that the court may be of opinion that, as the evidence appears on paper, they would have found differently.

Appeal, by plaintiff, from a judgment of the First District Court. The action was brought by the plaintiff, as assignee of one S. F. Mossman, who kept a bullion office. The defendant is proprietor of a hotel, and W. S. Bennett was, in January, 1858, Ms bookkeeper and bartender. Mossman testified that he was in the habit of supplying the defendant with change, and in January, 1858, delivered $100 worth to Bennett, taking from him a due bill in these words:

“New York, January 28th, 1858. $100.00. Due T. Mossman, one hundred for change.

[Signed] R. French,'

W. S. B.”

The signature was in the handwriting of Mr. Bennett. Mr. Mossman testified that he was referred, by the defendant, to Mr. Bennett as the proper person to whom to give the change; and that Bennett told Mm, in the defendant’s presence, that he was authorized to sign the defendant’s name. The defendant denied that he had been accustomed to get change from Mossman; averred that Bennett was never authorized to get the money on his account, and had in fact used the money for himself. The justice rendered judgment for the defendant, and the plaintiff appealed.