
    Coon v. Duckett.
    Appeal — Keview.— The verdict of a jury will not be disturbed, on appeal, where the evidence is conflicting, unless so unreasonable as to warrant the presumption that it is the result of malice, prejudice or misconception.
    
      
      Appeal from District Court of Chaffee County.
    
    James L. Duckett, who was plaintiff below, indorsed three certain promissory notes, of which his son and two other men were co-makers. As frequently happens in such cases he signed the instruments as a fourth comaker. These notes were due in nine, twelve and fifteen months, respectively. The first was paid at or about maturity; the second was canceled and delivered to one of the makers soon after it became due. ' About two and a half months after maturity of the third note, demand was made upon plaintiff for abalance of $182.20, claimed as remaining due thereon, which, relying upon the representations of defendant’s agent in connection therewith, plaintiff paid:
    Plaintiff brought the present action to recover back the sum of $125.05, alleging that to this extent the foregoing payment was excessive, the amount, in fact, remaining due at the time of the payment being but $57.15, instead of $182.20. In support of his position plaintiff produced a receipt given to his son for $125.05, which was not reported to -him or accounted for when he made the payment. Defendant contends that this receipt represented a balance unpaid upon the second or “middle note,” though at the date of the receipt that note had been delivered up and canceled. Plaintiff, on the other hand, insists that the middle note was fully paid when canceled, and that this receipt represented a payment upon the last note; the receipt bearing date twelve days subsequent to the maturity thereof.
    The whole controversy turned upon these conflicting claims. The jury returned a verdict in favor of plaintiff for the amount demanded, and judgment was duly entered thereon. To reverse this judgment the present appeal was prosecuted.
    Messrs. Watson & Libby, for appellant.
    Mr. G. K. Hartenstein, for appellee.
   Per Curiam.

Upon this appeal but one question is argued, viz., does the evidence contained in the record support the judgment?

The case was tried to a jury, and, under a settled rule that has been repeatedly announced by this court, the verdict will not be disturbed if the evidence be conflicting, unless the jury acted so unreasonably in weighing the same as to fairly warrant the presumption that they must have misunderstood its purport or misconceived its force and effect, or allowed malice, prejudice or some other improper motive to sway their judgment.

In connection with the question of fact really controverted, viz., upon which note was the payment represented by the receipt dated June 18, 1882, for $125.05, in fact made, the evidence is decidedly conflicting, and the present is not a case justifying interference by this court, under the rule above stated.

The judgment is accordingly affirmed.

Affirmed.  