#### D. S. Mills *v.*David Cole.

New Trial — Submission to Jury.

It is error for the court to grant a new trial, where the case was submitted to the jury on the evidence, with instructions asked for by both litigants to which no exceptions were taken, and the jury found in accordance therewith.

Same — Jury.

On a conflicting deposition given by a witness, in two different trials, it is within the power of the jury to conclude that witness was mistaken in one.

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

October 8, 1870.

Opinion of the Court bt

Judge Peters :

This case has been twice tried in the court below. On the first the issue on the plea of *non est factum*was submitted to a jury with the instructions asked by each party without objection, and to which no exceptions were taken. And a verdict and judgment having been rendered for defendant, on motion of appellee a new trial was awarded, on the ground that the verdict was against the evidence. On the second trial the law and facts were by agreement of the parties submitted to the court, who rendered judgment for appellee and appellant has appealed to this court.

The granting of the new trial is the first error complained of. On that trial the note with the testimony of the witnesses was before the jury, and was a part of the evidence — and whatever suspicions of the genuineness of the note, might arise on its face from apparent erasures of one word or more, and the insertion of others, and the similarity of the signature of Mills to the manuscript in the body of the, note they had a right to consider with the other evidence, they were facts legitimately before them for their consideration.

O’Bannon’s deposition it appears had been twice taken before the first trial and both his depositions were read to the jury. In the first he said *I believe*the signature of Mills to the note was *406
      *put there*by W. A. Jenkins and when asked on cross examination tbe following question *“Was*not tbe name of Mills placed upon that note long after the first signature was put on it?” He replied *“he did not hnow.”.*In, tbe second one — be stated in reply to tbe first interrogatory therein that be was in tbe employ o.f W. A. Jenkins,.and received forty-four tons of bay from David Cole and reported tbe amount to'W. A. Jenkins and be, Jenkins, *■filled up a*note, and signed bis name and tbe name of D. S. Mills to tbe same, and delivered tbe same to David Cole in bis presence.

*Gibson, for appellant.*

*Speed, for appellee.*

This certainly is a very different statement from that made in bis first deposition — and while Henry Jenkins swears in answer to a question confined to the signature alone that *he believed the signature*of Mills to the note is in tbe bandwriting of W. A. Jenkins, be does not say tbe filling up of tbe note is nor a word on that subject — and from an inspection of the original note which is before us, and a comparison of tbe name of W. A. Jenkins to it, with tbe filling up thereof, tbe jury were authorized to conclude that tbe witness was mistaken.

Tbe question is not whether Jenkins could not have bound, himself and partner for a firm debt by tbe signature of bis name alone to the note — but has tbe note since it was made and delivered been so changed in a material part as to destroy its obligátory force in law? That question was submitted to a jury on the-pleadings — and we are constrained to tbe conclusion that their finding- on that issue was not contrary to tbe evidence or so much against tbe weight of tbe evidence as to authorize the court to grant a new trial.

Wherefore tbe judgment is *reversed*and tbe cause is remanded with directions to set aside tbe last judgment and render judgment on tbe verdict of tbe jury for appellant.