
    G. W. Curry v. H. C. Metcalf.
    [Filed September 17, 1890.]
    Review: Evidence. Where the only error assigned is that the verdict and judgment are against the weight of evidence, and the witnesses on each side having equal means of knowledge testify to a contradictory state of facts, a new trial will not be granted.
    Error to the district court for Hamilton county. Tried below before Norval, J.
    
      Agee & Stevenson, for plaintiff in error.
    
      Hainer & Kellogg, contra.
    
   Maxwell, J.

This action was brought by the plaintiff against the defendant- in the district court of Hamilton county. The cause of action is stated in the amended petition as follows:

“The plaintiff complains of the defendant and for canse of action alleges, that on the 20th day of July, 1885, there was at the village of Hampton, Hamilton county, Nebraska, an association of persons formed for the purpose of carrying on, and engaging in the business of operating a steam flouring mill at said village, in said state, under the firm name of Metcalf & Grafe, and not incorporated; that while said association was so engaged in carrying on business under said firm name of Metcalf & Grafe, the said plaintiff, at the instance and request of said firm of Met-calf & Grafe, sold and delivered to said. Metcalf & Grafe 637 bushels of wheat at the agreed price of sixty-eight cents per bushel, and for which the said Metcalf & Grafe promised to pay the plaintiff the sum of $43,:!.16 on the 20th day of August, 1885. Said plaintiff says that Metcalf & Grafe never paid the said sum of money, nor any part thereof. The plaintiff further alleges, that after said sum of money because due and payable and. while the same was due and payable, to-wit, on or about the — day of-, 1886, the said firm of Metcalf & Grafe was indebted to divers other persons in various sums of money, the amounts of which are to the plaintiff unknown; that on or about the — day of-, 1886, and while said firm of Metcalf & Grafe was so indebted to the plaintiff and to various other persons, the said firm of Metcalf <& Grafe sold and delivered all their interest in the said flouring mill, including all the stock on hand, goods, chattels, merchandise, notes, accounts, rights, and credits of every nature belonging to said Met-calf & Grafe, of great value, to-wit, of the value of more than $2,000, to the defendant, Horace O. Metcalf, who then and there took possession of the same, and every part thereof, and converted the same to his own use and benefit. And said plaintiff says that in consideration of the sale and delivery of said goods, chattels, wares, and merchandise, stock on hand, notes, accounts, rights, and credits as aforesaid, the said defendant promised, undertook, and agreed to pay all the then outstanding indebtedness of said firm of Metcalf & Grafe, including the amount so, as aforesaid, due the plaintiff; but -plaintiff says said defendant, notwithstanding the promises, failed and refuses to pay the amount so as aforesaid due the plaintiff, and has converted all of said property, rights, and credits to his own use without paying the consideration therefor as he had agreed to do, and that there is now due the plaintiff from said defendant the sum of $433.16, with interest thereon from the 20th day of August, 1885.” •

There is a general denial and a number of defenses set forth in the answer which need not be noticed. On the trial of the cause the court found the issues in favor of the defendant and dismissed the action. The sole ground of error in this court is that the finding and judgment are against the weight of evidence.

The testimony shows that in the year 1884 H. C. Met-calf sold to A. J. Metcalf, E. F. Grafe, Samuel Grafe, and David Grafe a grist mill for the sum of $6,000, which mill was to be removed to Hampton, in Hamilton county, and there erected and put in running order; that H. C. Metcalf was to and did furnish a large amount of money which was expended on the mill. On the 5th of February, 1886, the amount owing H. C. Metcalf by A. J. Metcalf and the Grafes for the original price of the mill and money furnished by him and interest thereon was about $31,000, and the proof shows that the mill property at that time was worth only about $20,000.

On the 5th day of February, 1886, A. J. Metcalf and the Grafes sold their interest in the mill to H. C. Metcalf and he assumed certain specified debts owing by the mill to various customers thereof, but he denies that he assumed the debt due to the plaintiff in this case, and in this he is corroborated by two witnesses who were present when the contract was made.

The plaintiff’s claim is supported by the testimony of two witnesses, wlio testify in a general manner that H. C. Metcalf did assume the plaintiff’s debt. Their testimony^ however, is exceedingly vague and indefinite and does not seem to be of equal weight with that of the defendant.

The judgment, therefore, is not against the weight of evidence and is

Affirmed.

Cobb, Ch., J., concurs.

Noryal, J., did not sit.  