
    McDonald and Others v. Maudlin.
    Conflict of Evidence. — Supreme Court.. — Where there is a conflict in the evidence, and a conclusion can only be reached by passing upon the credibility of the witnesses, the Supreme Court will not interfere with the judgment.
    APPEAL from the Floyd Common Pleas.
   Elliott, J.

This was a suit by Maudlin against the appellants, McDonald $ Co., to recover the value of two hundred and seventy head of hogs, alleged to have been sold and delivered by the plaintiff to the defendants. Answer, the general denial, and payment. Reply, denying the payment. Trial by jury, and verdict for the plaintiff for $4,413 93. A motion for a new trial was made by the defendants, which the court overruled, and rendered judgment on the verdict. The case is brought here on the evidence, the appellants insisting that it does not sustain the verdict.

: J. S. Davis and A. Dowling, for appellants.

J. H. Stotsenburg and' T. M. Brown, for appellee.

The appellants admit that they received the hogs, and there is no controversy as to their value; but* they claim that they received them on account of one Hardin, to whom the plaintiff had sold them, and of whom they subsequently bought them, and paid him for them. On the other hand, the plaintiff denies having sold the hogs to Hardin, but insists that he sold them directly to the appellants, who promised to pay him for them. Such are the two conflicting theories of the case. We have examined the evidence carefully, and find it very conflicting. That given on the part of the plaintiff fully and clearly sustains the verdict, but the evidence for the defense is in direct conflict with it. The evidence, like the conflicting theories sought to be supported by it, cannot be reconciled. The question involved, therefore, could only be determined by properly weighing the credibility of the witnesses, in view of all the circumstances surrounding the transaction. This was the peculiar province of the jury, and, under the oft repeated decisions of this court, we cannot disturb the verdict. Indeed, we are not prepared to say, in this case, that the preponderance of the evidence is not in accordance with the finding; but if it were otherwise, we could not disturb it.

The judgment is affirmed, with five per cent, damages and costs.  