Branch v. Dever

Decided July 1, 1857

Texas Supreme Court · decided 1857-07-01

Tried below before the Hon. Peter W. Gray. Suit by appellee against appellants, Branch & Waring, commenced in a Justice’s Court, October 4th, 1854, to recover pay for driving and selling a drove of beeves, for defendants,, thirty-three days at $3 per day, less credit of $10, $89. Defence that the plaintiff had not discharged his duty in managing and disposing of said beeves, and had wilfully violated his instructions. Judgment in Justice’s Court for plaintiff for $89.

Cited by 3 later decisions — most recently March 1989

3 state decisions

Key passage — most relied on by later courts

“it is not enough that their verdict may appear to be contrary to the weight of evidence”

quoted by 1 later decision, including Herbert v. Herbert

Good law ✅— No negative treatment on recordhow we know

Decided 1857-07-01

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Wheeler, J.

¶1The evidence is conflicting as to whether the plaintiff violated his instructions or not. According to the testimony of some of the witnesses, and, perhaps, the weight of evidence, he did. But other witnesses testified that his instructions were to do with the beeves as he thought best. The evidence leaves no doubt that he had such a discretion in a certain event. It does not clearly and certainly appear that what he did was not for the best; or what he honestly thought, or had reason to think, was the best he could do for his employers under the circumstances. It was for the jury to weigh the evidence, and decide whether he had violated his instruc*615tions ; and it is not enough that their verdict may appear to be contrary to the weight of evidence. It was not without evidence to support it; and is not, therefore, contrary to the evidence. It was a case of conflict of evidence; and the Court did not err in refusing a new trial.

¶2Judgment affirmed.