
    Mathias Schmitz, Appellant, v. August Klatt.
    Practice on Appeal: conflicting evidence. Where an action to recover on a mistake in weighing is Based on an incredible difference upon a second weighing, a verdict upon conflicting evidence will not be disturbed, on appeal.
    
      Appeal from, Chickasaw District Court. — Hon. L. O. Hatch, Judge.
    Saturday, April 6, 1895.
    
      J. II. Powers for appellant.
    
      Springer & Clary for appellee.
   Kinne, J.

I. The facts in this case are that plaintiff, on February 27,1893, sold to defendant twelve head of fat cattle, at the agreed price of three dollars and thirty cents per hundred poundsi; that isaid cattle were to be delivered, weighed, and paid for’ at Ionia, Iowa; that they were delivered and weighed there. Plaintiff claims that defendant declared to him that the weight of the cattle was six thousand one hundred and ninety pounds, and defendant paid him two hundred and four dollars and twenty-seven cents for the cattle. Plaintiff claims that there was a mistake in giving the weight of the cattle; that in fact they weighed ten thousand one hundred and ninety pounds, and therefore defendant should have paid plaintiff three hundred and thirty-six dollars and twenty-seven cents, instead of the amount in fact paid; that he did not discover the error until after the money had been paid and received. The action is brought to recover this balance claimed to be due. The defendant denies that there was any mistake in weighing the cattle, and avers that the plaintiff was present when they were weighed, and agreed to the weight, and that he was paid accordingly, denies that the cattle weighed the amount claimed by plaintiff. In reply, the plaintiff admits he assisted in weighing the cattle at Ionia, and ■that he agreed to the weight, but avers that said agreement was made under a mistake of fact. The jury found for the defendant, and plaintiff appeals.

II. The only question presented by this record for our consideration is, does the evidence sustain the verdict? When these cattle were weighed at Ionia, at 1 o’clock p. M., they had been off feed for twelve hours. They were then driven to the defendant’s place, — a distance of ten miles, — over roads covered with soft snow. They arrived at his place at about 5 o’clock p. m. They were given all the water they wanted that night and the next morning. They were fed ten bushels of corn. They consumed all of this, and had eaten, according to the evidence, about one thousand three hundred and fifty pounds of hay, before 11 o’clock the next day. Plaintiff, on the day after the weighing at Ionia, proceeded to defendant’s place, and claimed that there had been a mistake of four thousand pounds in the weight of the cattle. The parties then reweighed the cattle at New Hampton, except one, which had been butchered. There is a dispute as to what the cattle weighed at New Hampton; defendant claiming that the eleven head weighed six thousand one hundred and ninety pounds, and some of the plaintiff’s witnesses testifying that they weighed seven thousand two hundred and sixty pounds. So, if we add one thousand pounds, which the evidence seems to show would be the weight of the animal which had been butchered, according to plaintiff’s theory the cattle weighed eight thousand two hundred and sixty pounds, and according to defendant’s testimony they weighed seven thousand ■ one hundred and ninety pounds. In other words, from plaintiff’s testimony there was a difference of over two thousand pounds between the weight of the cattle at Ionia and New Hampton; and according to defendant’s testimony, the difference was only one thousand pounds. Plaintiff offered evidence of witnesses wh'o had observed the cattle, tending to show that they would average in weight about eight hundred or eight hundred and fifty pounds. Defendant offered evidence tending to show that they would weigh much less. Stock men testified that such cattle, weighed as these were at Ionia, twelve hours off feed, and again, at New Hampton, on full feed, would weigh from eighty to one hundred and twenty-five pounds each more at New Hampton than at Ionia. Such, in brief, is the evidence. If this is true, it would account for more than the difference in weights as the defendant testifies to them. While it seems incredible that the difference between such weights could be as great as is claimed, still we have no right to set up our judgment against the testimony of witnesses in the case. The jury, from the testimony, could fairly find as they did. It is a plain case of conflict in the evidence, and we cannot interfere. — Affirmed.  