#### Van Doran vs. Armstrong, impleaded, etc.

*Reversal of judgment because verdict contrary to the evidence.*

1. Where the court below refused a new trial, this court will not reverse the judgment on the ground that the verdict was contrary to the evidence, if there was testimony which, if believed by the jury, would sustain tlie verdict.

2. The mere fact that two witnesses had testified in favor of the appellant, and only one in favor of the respondent, is not sufficient reason for setting aside the verdict.

APPEAL from tbe Circuit Court for *Winnebago*County.

Action against *Walter Guile*as maker, and *Jesse Armstrong*as guarantor, of two promissory notes. Judgment against botb defendants ; and appeal tberefrom by *Armstrong.*

Tbe facts are stated in tbe opinion.

*Earl P. Finch,*for appellant,

contended tbat “ it is tbe duty of a circuit judge to grant a new trial when tbe verdict is manifestly against tbe weight of testimony and tbe clear justice of tbe case” *(Van Vallcenburg v.*Hoskins, 7 Wis., 497; 1 Gra. & Wat. N. T., 367); and tbat sucb was tbe fact bere. He also contended tbat admitting, against objection, tbe evidence to show tbat *Guile*went away after tbe note was presented to *Armstrong,*was equivalent to informing tbe jury tbat tbe fact was material; tbat sucb admission was error by wbicb tbe appellant *may*bave been injured, and is therefore good ground for reversal. *State Bank of Wisconsin v. Dutton,*11 Wis., 371; *Remington v. Bailey,*13 id., 332; 6 Hill, 292, and note 6; 1 Bosw., 420; 24 Wend., 421.

*Jackson &*Halsey, for respondent,

argued tbat tbe legal presumption is tbat tbe guaranty was written on tbe note before tbe signature of *Armstrong. Small v. Sloan,*1 Bosw., 352. If tbe witness Boyd were on trial for forgery in writing tbe'guar-anty over *Armstrong’s*signature, tbe presumption tbat be did not do it would be so strong as to require tbe clearest and most *237positive proof to overturn tbat presumption. And tbe same rule bolds in civil cases. Best on Presumptions, [58] ; *Bex v. Inhabitants of*Twyning, 2 B. & Aid., 886. 2. If Boyd’s story be true, there was a double wrong. Boyd did wrong in writing tbe guaranty without tbe knowledge of Armstrong, and *Yam Doran*did wrong by appropriating it without tbe approval of *Armstrong.*And the favored presumption of innocence for all comes in with double force. 1 Phillipps’ Ev. (5th Am. Ed.), *644, note; *Bank of U. S. v. Dandridge,*12 Wheat., 69, 70. Counsel further argued that the contradictions and improbabilities in the testimony for the appellant were such as to justify the jury in believing the clear testimony of the plaintiff; and that this court would not interfere with the verdict, even if it would have found the fact otherwise. *Edmislon v.*Garrison, 18 Wis., 594; *Baton v. School*District, 23 id., 374; *Hull v. Augustine,*id., 383 ; *Fredendall v.*Taylor, 26 id., 286.

LYON, J.

This action is upon two promissory notes made by the defendant *Guile*to the plaintiff, each of which purports to have been guarantied by the defendant *Armstrong,*as follows: “I hereby, for value received, guaranty the payment of the within note when due. Jesse ARMSTRONG.” The complaint is in the usual form, and charges that *Guile*made the notes, and that *Armstrong*guarantied the payment of them as aforesaid. It also alleges that the necessary steps were taken to charge *Armstrong*as an endorser, but this averment was entirely unproved, no evidence having been given under it upon the trial of the action.

The defendant *Guile*did not answer or defend the action. The defendant *Armstrong*interposed an answer denying that he guarantied the payment of the notes, but admitting that he indorsed them in blank.

It appeared on the trial that the plaintiff sold *Guile*a lot of logs, and they went to the office of one L. P. Boyd, an attorney, to have the notes drawn therefor. Boyd drew the notes as *238directed, nothing having been said to him about a guaranty, and. *Guile*took them and left the office for the purpose of getting *Armstrong's*signature thereto. After obtaining such signature, he delivered'them to the plaintiff.

Boyd having removed from the state, his deposition was read in evidence on behalf of the defendant Armstrong, wherein he deposed that a short time after *Guile*left his office, the plaintiff returned there with the notes, and each note had the name of *Jesse Armstrong*across the back of it He further deposes as follows : “ *Van Doran*asked me, in effect, if the notes were just as good as though *Armstrong*had signed the notes. I remarked to him, that they would be perfectly good as against *Armstrong*if notified of failure of payment, when due; or that a guaranty would avoid the necessity of a notice. *Van Dorcm*asked me if I could fix it. I told him I could write a guaranty, and. then he could take it to Armstrong, and if satisfactory, all right; if not, I could draw new notes. He requested me to write the guaranty, and I did so, over *Armstrong's*signature on each note; he took the notes and left the office, but I don’t know what he did with them.”

The defendant *Armstrong*testified that he endorsed the notes in blank, and that when he did so the guaranty had not been written upon either note.

On the other hand, the plaintiff testified that no such conversation or transaction as testified to by Boyd occurred between them; that Boyd did not have the notes in his hands after *Guile*bought them back, and that he had no conversation with Boyd about the notes after that time. It is conceded that the guaranties are in the hand writing of Boyd. The plaintiff had a verdict and judgment, and the defendant *Armstrong*appeals from such judgment.

No exceptions were taken to the charge of the circuit judge to the jury, and but one exception to the admission of evidence during the trial was taken by the defendant. The appellant was recalled by the plaintiff, who offered to prove by him *239that *Guile*went away after tbe note was presented to tbe witness. (Tbe evidence shows that tbe plaintiff presented one of tbe notes to tbe witness in tbe post-office after they became due.) This evidence was admitted under tbe objection and exception of tbe appellant, and be testified that *Guile*went away tbe summer before, and after tbe action was commenced. Earlier in tbe trial be bad testified, on tbe examination of tbe plaintiff and without objection, that *Guile*was there when tbe note was presented to him in tbe post-office; at least, be testified that be then told tbe plaintiff so; "and that be bad left before tbe trial. In answer to tbe question: “Is Guile down there at Menasba now ? ” be answered, “ No sir. He went away, and I have tried bard to find him.”

Thus it was testified by tbe appellant, without objection, that *Guile*remained at Menasha until after tbe notes became due, and left there before tbe trial, and although all of tbe evidence on that subject was probably immaterial, we are entirely unable to see what additional mischief could possibly have been done by requiring tbe appellant to fix tbe time when be left, a little more definitely; for this is all that tbe testimony to which exception was taken amounts to.

It should have been stated before, that, after verdict and before judgment, a motion for a new trial, on tbe grounds that tbe verdict was against tbe law and tbe evidence, was overruled by tbe circuit court, to which ruling due exception was taken by tbe appellant.

Tbe only substantial question in tbe case is, whether tbe circuit court erred in denying tbe appellant’s motion for a new trial. If there is sufficient evidence to support tbe verdict, tbe court did not err in that behalf; but if tbe evidence is not sufficient to support tbe verdict, a new trial should have been granted.

Tbe rules which should govern tbe court in granting or refusing new trials have frequently been stated and enforced by this, court.

*240In *Hooe v. Lockwood,*3 Chand., 41, it was said: “Tbe motion lor a new trial was addressed to tbe discretion of tbe judge; and unless there was a gross abuse of that discretion, this court will not reverse tbe judgment for an alleged error in its exercise.”

In *State v. Lamont,*2 Wis., 437, we find the following: “ Motions for new trials are mainly addressed to tbe discretion of tbe court in which they are made, and this court will not interfere with tbe exercise of that discretion except in extreme cases.” And again: “There was testimony sufficient oar the part of the prosecution (if the jury believed it), to warrant a conviction, and the testimony introduced by the defendant to prove the contract might have been wholly discredited by the jury.”

The same rule was re-asserted in *Cook v. Helms, 5*Wis., 107, and the court refused to reverse a judgment for the reason that the circuit court had overruled a motion for a new trial, although it is there conceded that the weight of evidence was against the verdict.

In *Van Valkenburgh v. Hoskins,*7 Wis., 496, the rule is thus stated: “The circuit courts have an undoubted right, and it is their duty, to grant newtrials where the verdict of a jury is manifestly against the weight of testimony and. the clear justice of the case. In passing upon applications for new trials, the law requires the circuit court to exercise an enlightened judgment and sound legal discretion. When this is done, this court will not interfere, as we have repeatedly decided.”

*In Lockwood v. Stewart,*12 Wis., 628, it is said that “it is unnecessary for us to declare what conclusions we should have drawn from the evidence, and it is sufficient to say that it clearly supports the verdict, even if we concede that the weight of evidence was against the finding.”

In *Moak v. Bourne,*13 Wis., 514, which was an action to recover the possession of personal property, a new trial was *241granted because it appeared “ *beyond any question"*that as to a part of the property in controversy the verdict was wrong.

This court say in *Whalon v.*Blackburn, 14 Wis., 432, “ It appears to us that the verdict in this case is entirely unsupported by the evidence.” “ As the verdict is entirely unsupported by the evidence, it follows that the circuit court erred in refusing a new trial.”

In *Edmiston v.*Garrison, 18 Wis., 594, we find the rule thus stated: “ Where the evidence is conflicting or doubtful, or where it is not clear to the court that the jury was wrong, the verdict will not be disturbed.”

And in *Eaton v. Joint School*District, 23 Wis., 374, the law on this subject seems to have been concentrated by Justice Paike in a single paragraph: “ Where there is some evidence upon which the finding of the jury can fairly be supported, this court would not interfere with the action of the court below in refusing a new trial, although we might consider the verdict against the weight of evidence. But where there is no evidence at all to support the verdict, it is the duty of the court to set it aside, and of this court to correct its action, if it refuses.”

Applying the rules thus established by this court to this action, the question under consideration may be readily solved. The notes and the guaranties are in the hand-writing of Boyd. The plaintiff testified that the notes were not in the hands of Boyd after they were delivered to plaintiff by *Guile.*The irresistible inference from these facts (if they are facts), is, that Boyd wrote the guaranties before the appellant put his name on the notes. If the jury believed the testimony of the plaintiff, it was sufficient to support a verdict for him. They evidently believed his testimony, for they gave a verdict in his favor. True, there were two witnesses who testified to a state of facts which would have defeated the action, had the jury believed, them. But the jury evidently did not believe their statements.. We have no rule of law by which we can compel a future jury to disbelieve the statements of the plaintiff and credit those of *242Boyd, and tbe appellant. It was not tbe duty of tbe jury to *count the witnesses*and render a verdict in accordance with, tbe testimony of a majority of them, but it was their duty to *weigh the testimony*and render a verdict in accordance with tbe preponderance of tbe evidence. I think no case can be found where a verdict has been set aside merely because a majority of the witnesses have testified in favor of the losing party.

It is said that the reasonable probabilities of tbe case are with tbe appellant. Some of them doubtless are. It is reasonably probable that Boyd did not write tbe guaranties on tbe notes without being requested to do so, and it is conceded that he was not requested to do so before tbe notes were taken to the appellant. But on tbe other band, it is also reasonably probable that if tbe plaintiff was told by Boyd that it was necessary either to have tbe consent of the appellant to tbe guaranties, or to have new notes executed, he would have *made some*little effort to obtain such consent or to get new notes. So we see that there are reasonable probabilities in tbe case in favor of both parties.

Knowing nothing of either of the parties, or of Boyd, and not having seen the parties upon the stand or beard their testimony, it may seem to us that the preponderance of evidence is with tbe appellant. But tbe jury, who doubtless knew tbe witnesses, and who saw tbe parties upon the stand and heard them testify, had a better opportunity to judge which way the evidence preponderated. The law does not permit us to say that they judged erroneously.

The judgment of the circuit court must be affirmed.

*By the Court.*— Judgment affirmed.