#### Ignatz Huber v. Herman Schmacht.

Practice—Question of Fact—Effect of Verdict.

This court is not authorized to set aside a verdict where no question of law is involved, unless the verdict is clearly against the weight of evidence.

[Opinion filed May 21, 1891.]

Appeal from the Circuit Court of Eock Island County-the Hon. Arthur A. Smith, Judge, presiding.

Messrs. E. H. Guyer and Adair Pleasants, for appellant.

*230Mr. Joseph L. Haas, for appellee.

C. B. Smith, P. J.

This was a suit brought on a promissory note for $250 executed by Herman Schmacht to appellant, Huber. Huber claimed that there was still due and unpaid, $150 on the note. Appellee set up the defense of payment of the note in full, and also filed a counter claim against appellant for repairs and money paid on account of appellant. The case was tried before the court and a jury, and the jury rendered a verdict in favor of appellee on his offset, and assessed his damages at $75.65. The court overruled a motion for a new trial, and gave judgment on the verdict. Appellant brings the case here on appeal, and insists that the verdict and judgment are against the evidence. Ho other question is presented. An examination of the record shows that the evidence upon the payment, as well as upon the counter claim or set-off of the defendant, was sharply conflicting. Hnder the evidence the jury might have found either way, and there would have been evidence to support such a finding. It was for the jury to say who of these witnesses were most worthy of belief. We can not say they were mistaken, or that they erred in their judgment.

Before we are authorized to set aside a verdict we must be satisfied that it is clearly against the weight of the evidence. We are not so satisfied in this case, and the judgment will be affirmed.

Judgment affirmed.