Sterling

Action to recover the sum of $5,000 alleged to be due plaintiff from defendant’s testator on account of profits made by the latter in connection with the purchase of property by him as the agent of plaintiff.

Verdict and judgment for defendant, and plaintiff appeals from judgment on a bill of exceptions. The exceptions mainly relied upon for a reversal are directed to- the insufficiency of the evidence to support the general verdict and the findings of the jury upon the thirteen special issues submitted to them. The principal question here involved is: Does t'he record show evidence to justify the jury in finding that the decedent, J. H. Cole, was not the agent of plaintiff in the transaction in question? Plaintiff testifies directly that he did employ Cole to purchase the property, and he is corroborated in some respects by one other witness, and unless we can say that the circumstances of the transaction and the other testimony were such that the jury, in the exercise of their exclusive statutory right of judging of the credibility of witnesses (Code Civ. Proc., sec. 1847), could discredit the testimony of the plaintiff and his witness, we must reverse the judgment.

While…