Opinion
No. 36602.
November 24, 1947. Suggestion of Error Overruled January 12, 1948.
1. BILLS AND NOTES.
Maker had the burden of proving alleged payment of note sued on.
2. APPEAL AND ERROR.
Verdict for maker of rent note who claimed payment was against the overwhelming weight of the evidence, which required that case be remanded for a new trial.
APPEAL from the circuit court of Humphreys county. HON. S.F. DAVIS, J.
H.F. Jones, of Belzoni, for appellant.
Verdicts must be based on evidence, and not on speculation, sentiment, sympathy or some extraneous influence.
Shell Petroleum Corp. v. Eagle Lumber Supply Co., 171 Miss. 539, 158 So. 331.
Evidence inherently unbelievable or incredible is in effect no evidence and insufficient to sustain a verdict.
Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747.
See also Colossus Co. v. D.L. Fair Lumber Co., 156 Miss. 878, 127 So. 300; Germany v. U.S. Fidelity Guaranty Co., 168 Miss. 854, 152 So. 275; Kramer Service Co. v. Wilkins, 184 Miss. 483, 186 So. 625; Southern R. Co. v. Buse, 187 Miss. 752, 193 So. 918; M.G. Travis Co. v. Mosley, 148 Miss. 368, 114 So. 628; McElrath Rogers v. W.G. Kimmons Sons, 146 Miss. 775, 112 So. 680; J.R. Watkins Co. v. Buchanan, 149 Miss. 483, 115 So. 773; Mobile O.R. Co. v. Clay, 156 Miss. 463, 125 So. 819; Blount v. Miller, 172 Miss. 492, 160 So. 598; Peoples Bank v. Gore, 178 Miss. 216, 172 So. 506; Stewart v. Graham, 93 Miss. 251, 46 So. 245.
W.D. Womack, of Belzoni, for appellee.
A verdict or a finding by the jury will not be disturbed as against the evidence because of a mere preponderance of evidence against it but will be set aside only when it is palpably against the weight of evidence or clearly shows that the jury was mistaken or was influenced by passion, prejudice or corruption.
Fraternal Aid Union v. Whitehead, 125 Miss. 153, 87 So. 453; Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144; Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86; Ayers et al. v. Tonkle et al., 138 Miss. 712, 103 So. 361; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565; Carberry v. Howell, 114 Miss. 549, 75 So. 383; Ogden v. Harrison, 56 Miss. 743; Sunflower County v. Bank of Drew, 136 Miss. 191, 101 So. 192.
Tabb brought suit upon a note in the sum of $375 as stated rent upon a farm for the year 1938. The defense was payment by certain checks, assignments and personal property. To meet this defense, Tabb undertook to show that these credits were applicable to a similar note simultaneously executed by Davis for the 1937 rent.
There was a conflict in the testimony of the parties, the only witnesses, as to whether the note for 1937 rent had been executed. The amount of the credits is agreed. The issue, therefore, was a factual one, and involved the question whether the payments were made upon the indebtedness for 1937 or for 1938. Therefore, the fact of an existing debt at the time of the execution of the note sued upon is more important than the fact that a second note for 1937 was given to evidence it.
Upon this issue, Tabb introduced two letters admittedly written by Davis, the first dated December 21, 1937, and the second dated February 4, 1938. The record sufficiently discloses that both were written before the note or notes were executed. We do not set out the text of these letters, but find that both admit and deplore the existence of a prior indebtedness for rent and the tenant's inability to pay same, except by the delivery of certain livestock and other property.
All the circumstances are consistent with plaintiff's contention, and in view of the defendant's burden of proof as to payment, the admissions in these letters weigh heavily in the balance. In this view, the verdict for the defendant is against the overwhelming weight of the evidence, and, despite our disinclination to disturb a finding by jury, we are constrained to remand the cause for a new trial.
Reversed and remanded.