Nesbitt v. Herbert , 56 Pa. Super. 36 ( 1914 )

Opinion by

Orlady, J.,

The appellant presents a very persuasive argument on this record, and if it depended alone on our reading of the testimony and deciding the question, as one of fact, we might reach a different conclusion from that of the jury. However, the determining question was purely one of fact, and was fairly presented by the court, viz: “If you come to the conclusion that Willis A. Herbert and his son were not really partners, but that the partnership articles and the holding of himself and his son out to the world as partners was but a cover or sham to defeat his creditors, and enable him to do business trading as a partnership, then your verdict should be for the plaintiff. The question for you to determine is the good faith and bona fides of Mr. Herbert and his son in this matter. If they were bona fide trading in. partnership, the defendant here is entitled to your verdict. There is no money belonging to Willis A. Herbert, individually, which is subject to this attachment.”

There were material contradictions in the testimony of the father and son. The subject-matter of their testimony as well as their manner on the stand affected their credibility, and these matters were exclusively for the jury. Preponderance of evidence depends on credibility, not on the number of witnesses: Allen v. Line, 11 Pa. Superior Ct. 517. The result reached is not so clearly without foundation as to justify us in directing a retrial of the case, when the trial judge who participated in it declined to do so while the circumstances were yet fresh in his mind: Cobb v. Ins. Co., 19 Pa. Superior Ct. 228. It was not error to exclude the record of another action between different parties. The amount of the fund in court was not disputed and it was not material on this trial, to ascertain how it was produced.

The judgment is affirmed.