Opinion op the Court by
Austin, J.The plaintiff moves for a new trial, on the ground that the verdict is against the weignt of evidence.
The plaintiff’s counsel cites Wait vs. McNeill, 7 Mass. 261, and Harding vs. Brooks, 5 Pick. 244, as establishing a doctrine that “ the jury are not at liberty to disregard the testimony of a witness of fair fame whose testimony is unimpeached.” If to these *26words quoted had been added the words “and uneontradieted,” the whole, as so amended, would have correctly expressed the doctrine as shown by those cases. But in each of those cases, although there were only circumstances to contradict positive testimony of an unimpeached witness against the verdict rendered, the verdict was sustained.
W. O. Jones, for plaintiff. J. W. Kalua, for defendant. Honolulu, November 19, 1883.In the case at bar, the plaintiff’s witness, Nakaleka, swears to an admission by defendant that $35 had been paid by his wife to plaintiff on the contract for sale of taro. This is contradicted by the defendant, and also Hoopii, his wife, swears that she never paid plaintiff any sum on that contract, but loaned him $35. The rule referred to does not apply to such a case.
The plaintiff shows that the contract of sale was made in December, 1879, and the payment on account of it was made in May, 1880. The defendant shows, however, that the verbal contract was made in January, 1879, and rescinded three months after, and that he remained near plaintiff till December 28, 1879, who Dever asked for payment up to that time, and then defendant went to Lahaina and remained a year. If defendant is right, as seems probable, as to the time of the contract, the plaintiff waited a long time before asking any pay.
On looking at all the testimony, although we think the verdict might well have been the other way, we do not think it ought to be disturbed.