
    Nathaniel J. Bussey, plaintiff in error, vs. Raphael J. Moses, defendant in error.
    (Atlanta,
    January Term, 1873.)
    New Trial — Conflicting Evidence — Discretion of Court. — Where there has been a jury trial and a verdict, and the evidence is conflicting, it is for the jury to determine upon the credit to be given to the-witnesses, and if the Judge below, in the exercise of his legal discretion, refuses a new trial, there is no legal ground for the interference of this'Court to grant a new trial.
    New trial. Before Judge Johnson. Muscogee Superior Court. October Term, 1872.
    Raphael J. Moses brought complaint' against Nathaniel J. Bussey for $270 00, with interest from June 1st,-1871. He alleged, in his declaration, that on January 1st, 1869, the defendant being the holder of $2,600 00 of bills of the Bank of Columbus, and being a stockholder in said bank, and it being doubtful, from this fact, whether he could secure any dividend on said bills, authorized the plaintiff to make a compromise with the bill-holders who were not stockholders, some of whom had brought suit on their bills, and undertook and promised to the plaintiff that if he would undertake to have all suits pending against said bank or against said defendant, as a stockholder, dismissed, that he would allow to the plaintiff, as compensation for his services, one:half of whatsoever sum he, the said defendant, might secure as a dividend on said bills. That the plaintiff did so undertake, and was successful *in achieving the result desired, by which said defendant secured the sum of $520 00 on said bills, yet the said defendant has refused to pay to plaintiff the 'compensation promised, as herein set forth.
    The declaration was subsequently amended by the addition of a quantum meruit count.
    The defendant pleaded the general issue.
    The plaintiff introduced the following testimony:
    Raphael J. Moses, the plaintiff, sworn: Plaintiff filed-a bill for D. F. Wilcox, assignee of the Bank of Columbus, against the creditors and stockholders of said bank, asking direction of the Court in the distribution of the assets. A decree was rendered in the Superior Court of Muscogee county, under which the Stockholders who held bills were allowed to receive a dividend just as other bill-holders. This decree was affirmed on exceptions taken, in this particular, in the Supreme Court. Several s,uits for large amounts were brought by Peabody & Brannon, as attorneys against the stockholders, one of the suits being for $30,000 00. These suits were pending when the decree was made on the bill for direction. Plaintiff determined to effect a compromise with the bill-holders, but before doing this he made contracts with enough of the stockholders to pay him for his labor. The defendant had been a stockholder for fifty shares, and had sold his stock in 1859 or 1860, but had not advertised the fact, as required by the law, in order to relieve himself from liability. The amount of bills in circulation at the time was sufficient to make each stockholder liable for $160 00 on each share of stock, and as defendants held fifty shares of stock, his liability was $8,QOO 00. Plaintiff met defendant at Spear’s corner, in Columbus, and told him what he, plaintiff, intended doing, and defendant told him to go ahead, and he would do what the other stockholders did; saw him at another time standing on the steps of the old Bank of Columbus building, and then said he would give to the plaintiff one-half of what he received on the bills; saw him at another time at the Eagle and Phoenix Factory, when a storm was raging. Mr. Young and the plaintiff were sitting *on a bench under a shed, in the rear of the office. Defendant came up and asked plaintiff how the case was progressing. He said, as he left, that they were to divide what plaintiff recovered on the bills. Plaintiff made arrangements with several of the stockholders, and when he had secured enough to compensate himself, he proceeded to effect the desired compromise. Plaintiff did effect a settlement, but it was after much trouble and expense; had to pay Mr. Dougherty thirty-three cents in the •dollar on the bills he held to secure his consent; had to pay fifty cents on the dollar to Mr. Russell to secure the same end. By the compromise decree plaintiff obtained, defendant received $520 00 on his bills. He refused to pay plaintiff for his services. Some of the stockholders paid plaintiff ten cents, and some twelve cents on the dollar, of their bills; made no contract with Captain McAllister, as plaintiff knew him to be a fair man, and would do what was right; knew that he would not take advantage of plaintiff’s labor, and refuse to pay for it; charged him five per cent, of his bills, which he paid without complaint. But plaintiff was not willing to trusr the defendant, as he believed defendant would take advantage of his labors, and refuse to pay anything after the compromise was effected. After the defendant had received the money on his bills, plaintiff had occasion to go down to the factory to see Mr. Young, and there saw the defendant. He then denied that he had ever made any contract with the plaintiff. Mr. Young did not remember the conversation, although he remembered the occasion of the storm, and plaintiff’s being at the factory. Mr. Young is hard of hearing, and may not have heard the conversation between the plaintiff and the defendant.
    Plaintiff introduced testimony to show that his services to defendant were reasonably worth $500 00; to show the character of the litigation between the bill-holders and the stockholders of the bank, and the consent decree that was rendered. It further appeared that the defendant had only $2,500 00 in bills, and, therefore, received $500 0Ó.
    The defendant denied that he had ever, under any circumstances, *made any contract with plaintiff in reference to his said bills, or that he had ever had any conversation with him on the subject.
    W. H. Young testified that he remembered one occasion when the plaintiff was at the factory,, during a storm; that plaintiff and the defendant were talking before he came up; that he did not hear anything said about the employment of plaintiff by the defendant, or about defendant’s giving to him one-half of the bills; that plaintiff and defendant had no conversation in his presence, that he remembered, which he did not hear.
    The defendant also introduced the record of the bill of D. F. Willcox, assignee, to show that he was not a party to thv.- same; also, evidence to show that he never was sued as a stockholder of the Bank of Columbus.
    The jury returned a verdict for the plaintiff for $250 00; whereupon, the defendant moved for a new trial, upon the ground that the verdict was contrary to the evidence. The motion was overruled, and the defendant excepted.
    Prabody & Brannon, for plaintiff in error.
    M. H. Brandrord ; R. J. Mosgs, for defendant.
   McCay, Judge.

It would be a violation of the oft repeated rulings of this Court to reverse the judgment of the Judge of the Superior Court in this case. To a stranger, who does not know the witnesses, the testimony is pretty fairly balanced. And, under the mode of trial provided by law, the proper tribunal for deciding as to the credibility of the witnesses has passed upon it, and we have na power to alter the verdict.

It seems almost absurd to say that the verdict of the jury is without evidence. Whether the verdict ought to be one way or the other, seems to turn entirely upon the weight given by the jury to the principal witnesses. The^r statements are contradictory. Both of them are interested in the *event of the suit; both, indeed, are parties to the suit. If the verdict of a jury is to be set aside because the Court differs from the' jury on the credit to be given to the witnesses, and this, too, when-the witnesses are parties, we see no use for a jury'trial at all. There must be, somewhere, an end to controversy. Our law has provided that, on questions of fact, that end is the verdict of a jury. True, if the jury bring in a verdict displaying that it is not based upon facts and testimony, the Judge of the Superior Court may set it aside; but for a mere difference of opinion as to the credit to be given to this man or that man, the Judge ought not to interfere. Especially is this true if the witnesses be neither of them attacked, and the weight to be given to each is to depend on the mode of testifying and the probability of the account given by each of the transaction. For a difference of opinion between the Judge and the jury in such a case, it is not in the power of the Court to interfere.

To make out a case for our jurisdiction, the jury must not only have acted with passion, under a mistake of law, or clear mistake of fact, but me Judge must, himself, have acted with Want of discretion.

Judgment affirmed.  