#### S. A. Frazier, Appellee, v. Howard Garrison et al., Appellants.

Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.

Assumpsit. Appeal from the Circuit Court of Washington county; the Hon. Charles T. Moore, Judge, presiding.

Heard in this court at the February term, 1908.

Affirmed.

Opinion filed September 12, 1908.

A. D. Rodenberg and Vernor & Vernor, for appellants.

Frank F. Noleman and W. F. Bundy, for appellee.

Mr. Justice Myers

delivered the opinion of the court.

This is an action in assumpsit brought by the appellee, the plaintiff below, against the appellants, the defendants below, to recover $945.07, .alleged to be due on two promissory notes of $400 each, dated March 9, 1903, payable in two and three years, respectively, bearing interest at the rate óf six per centum per annum, and executed by Howard Garrison as principal and S. O. Garrison as surety.

The declaration is in the usual form consisting of one special count and the consolidated common counts, and the plea is the general issue with notice of set-off. There is no dispute as to the execution of the notes in question or of the amount alleged to be due thereon. The only contention in the case is about the allowance of a set-off of-$500 alleged to he due the appellant, *475Howard Garrison, as a commission earned by him in assisting the appellee to dispose of certain property.

The case was tried by a jury, who found a verdict in favor of the appellee and assessed his damages at $945.07, the amount of the notes with interest, upon which judgment was rendered. Appellants contend that the verdict was against the weight and preponderance of the evidence on the question of set-off, and for that reason the judgment ought to be reversed. Howard Garrison, one of the appellants, testifies to an agreement with appellee and to conversations, facts and circumstances which, unchallenged, would authorize and require an allowance of $500 in set-off against the appellee’s claim. But there is a direct denial and dispute by appellee of material parts of appellant’s statement, and in this conflict of testimony between two witnesses, equally interested and equally credible,' so far as appears of record, without corroborating circumstances to turn the scale one way or the other, the verdict is conclusive and. this court may not interfere, for we cannot say that the verdict is contrary to the evidence, or that it is manifestly against the preponderance of the evidence. If the jury believed appellee, who was corroborated to some extent by other witnesses, the verdict is right and though appellee’s given instruction be subject to the criticism made, it cannot have prejudiced the appellants in their right to a fair and impartial trial, for there is nothing in the instruction calculated to mislead the jury as to the controlling issues in the case. We have reached this conclusion after a careful reading of the evidence and consideration of argument by counsel, and deem it unnecessary to further discuss the evidence or contentions made in argument.

The judgment will be affirmed.

Affirmed.