This is an action of trover, in the Union circuit court, by William G. Gresham, against Frederick A. Peterson, for twelve bales of cotton. At the October term, 1867, the defendant appeared and pleaded the general issue, and at the April term, 1868, the case was tried by a jury, and a verdict returned for the plaintiff for $1,388^^ damages. The defendant moved for a new' trial upon the • following grounds: 1. That the court, at the previous term, refused to require the plaintiff to answer interrogatories exhibited against him by defendant for discovery. 2. That illegal evidence was admitted on the part of the plaintiff. 3. That legal evidence offered by the defendant. was excluded. 4. That the court misdirected the jury at the instance of the plaintiff. 5. That the damages were excessive. 6. That new evidence, material for the defendant, had been discovered since the trial. The court overruled the motion, and he excepted and appealed. No exfception was taken at the time to the refusal of the court to compel the discovery sought by the defendant, and the petition, and the action of the court upon it, constituted no part of the record before us. Omitting to except, the defendant acquiesced in the ruling of the court, and waived his right to object to it after-wards.
Upon the trial the defendant moved to exclude from the jury the evidence of P>. F. liobinson, for irrelevancy. His testimony was: “ That cotton in Camden, about the first to the tenth of June, 1865, wras worth thirty-seven and a half cents per pound, in greenbacks.” The conversion was proven to have been in Union county, in February or March, preceding.
It is an established rule, governing in the production of evidence, that “the evidence offered must correspond with the allegations, and be confined to the point in issue,” but it is not necessary that it should bear directly upon the issue.
“ It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; although alone, it might not justify a verdict in accordance with it.” Green. Ev., sec. 510.
The fact here proven, is one from which an inference of the value of the cotton converted, at the time and place of conversion, may bo drawn.
“A presumption of fact is properly an inference of-that fact, from other facts that are known; it is an act of reasoning. In drawing an inference from facts proved, regard must always be had to the facility that appears to be afforded for explanation or contradiction. No person is to be required to explain or contradict until enough has been proved to -warrant a reasonable ■ conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, human reason can not do otherwise than adopt the conclusion to which the proof tends, if no explanation or contradiction is offered. A presumption then is a probable inference, which our common sense draws from circumstances usually occurring in such cases. The slightest presumption is of the nature of probability; and there are almost infinite shades, from the lightest probability to the highest moral certainty. Tf the circumstantial evidence be such as to afford a fair and reasonable presumption of the fact to bo tried, it is to be received and left to the consideration of the jury, to whom alone it belongs to determine upon the precise force and effect of the circumstances proved, and whether they are sufficiently satisfactory and convincing to warrant them in finding the fact in issue.” 1 Phillips on Evidence, 598.
The evidence offered was not to prove that the cottop was worth thirty-seven and a half cents per pound, but to ascertain and determine what its value was; and a fair and reasonable presumption of such value can be drawn from it, for, directed by common experience and knowledge of the ordinary fluctuations in the price of this staple production of our State, the conclusion is irresistible, that if it was worth so much three or four months later, it was worth, even in the remotest part of the State, at the time of conversion, five cents per pound, and the jury might draw any other that is more reasonable or likely. Enough then was proved to warrant a conclusion against the defendant, in the absence of explanation or contradiction. He also, for the same reason, moved to ex-dude the evidence of Hal. Sims. It was that cotton was worth in June, 1865, twenty-five cents in gold; and that he had sold some in that month for forty-eight cents. As the judgment could be for such money only as the plaintiff would have a right to demand in satisfaction of it, the price in gold, without any evidence, and there was none, as to the relative values of gold and legal tender notes or currency, affords no criterion for ascertaining the value of the cotton. ' If, then, we are to understand the witness as referring exclusively to the gold price, his evidence should have been excluded; but if that portion of it relating to the price for which he had sold some, should be construed to mean that he had sold at that price in currency, a question not necessary for us to decide, so mucli of it was relevant, and the defendant, not discriminating between that which was relevant and which was not, the entire statement was rightfully admitted.
But, though the whole were irrelevant, and should have been excluded, it could have had no influence upon the vei'dict to the defendant’s prejudice, a» eleax’ly appears by the amount of damages assessed; and, as there xvas sufficient competent evidence to establish the value, the coixrt very correctly refused to disturb it oxx aecouxxt of its admission. Weaver v. Caldwell, exr., 9 Ark., 339. Owen, as admr., v. Jones, 14 ib., 503. Sharp v. Johnson, 22 ib., 79. Creary v. Sprague, 12 Wend., 41. The defendant having proved by J. H. Ingram that the plaintiff1, during the war, sold thirty-six bales of cotton to the Confederate States, and attempted to establish, by him and other witnesses, that the cotton, which the controversy was about, was part of that, the plaintiff called the same witness, and proved by him that, after the surrender of the Confederate armies, he delivered to one Peter M. Brown thirty-six bales, which were carried to Trenton, La., and delivered to one Anderson, as the agent of one Lewis, a United States cotton, agent. Plaintiff' asked the witness if he saw, when the cotton was delivered to Brown, any person give him a receipt-for government cotton, and for what number of bales? The court permitted .the witness to answer the question, against the objection of the defendant, and he said Brown gave the plaintiff such a receipt for thirty-six bales.
The design of eliciting this evidence was, not to prove the contents.of the receipt, but that the same cotton the plaintiff sold the Confederate States, and which the witness had stated., had been left in his possession at the time of his purchase, was, after the war, turned over to the United States. “A payment of money, or an admission to that effect, may be proved by oral evidence, though a written receipt was given.” 1 Phil. on Ev., 586; Humphries v. McGraw, 5 Ark., 61; Vaugine, et al., v. Taylor, 18 Ark., 65.
The defendant, upon cross-examination of the witness, asked him if Anderson, after the cotton was delivered, did not load witness’ wagon, which conveyed the cotton, with groceries for Thomas J. .Bradley, of Eldorado, Ark., which question the court, upon objection of the plaintiff, would not permit him to answer.. The fact then attempted to be proven, had no connection whatever with the case, and was entirely irrelevant to the issue.
The instruction given for the.plaintiff, objected to, is as follows: “If the jury believe, from the-evidence, that the cotton in controversy belonged to the plaintiff, and that the defendant got possession of it without authority from the owner, and - converted it to his own use, or failed to deliver the cotton to plaintiff on demand, they must find for the plaintiff the value of the cotton at the time of the conversion, with six per cent.. interest on the same, from the date of conversion.” This in-. struct ion is unobjectionable, except that part in relation to demand. As there was no evidence tending to prove a demand, that portion is irrelevant; but, if not so absolutely abstract as might not mislead the jury, it was corrected, and its-influence on their minds removed, by an instruction given at the instance of the defendant, which we find in his bill of exceptions, as follows: “3. That, even if they should find from, rhe evidence that the cotton in dispute belonged to the plaintiff; and that the defendant got it and disposed of it before the surrender, and had nothing to do with it after that time, they will assess the damages at the value only of the cotton proven at rhe time it was taken and disposed of, and not its value at any other time, even if the demand was subsequently made.” The two instructions taken together, as they should be, correctly declare the law in respect to the time the damages should have relation to. Abraham v. Wilkins, 17 Ark., 292; Ingram v. Marshall, 23 Ark., 115; Wood v Wylds, 11 Ark., 754; Burton v. Merrick, 21 Ark., 357; McNeill v. Arnold, 22 Ark., 477.
"We have thus noticed all the objections, raised at the trial, to the evidence and instructions'-of the court, and find no error. That the damages were excessive, is the next objection. To warrant this court in reversing a judgment, on the ground of excessive damages, they must be so flagrantly excessive that the mind at once perceives that the verdict upon which it is founded is grossly unjust. According to the evidence of one of the witnesses, the weight of the bales wras five hundred pounds each, and, by an easy calculation, it is seen that the damages assessed do not exceed one-half what the same quantity of cotton was worth in Camden, three or four months before, with. interest from the time of conversion. There is therefore not the least ground for the objection that the damages are excessive.
The remaining cause assigned for a new trial was the discovery of new evidence. It is unnecessary to notice this newly discovered evidence, as the defendant simply alleges in his motion that he has used due'diligence in‘the preparation of his case, and in procuring evidence before the trial, but states no tacts or circumstances to show any diligence whatever.
Due diligence, or what constitutes it, is to be determined by the court, not by the party alleging it, and the facts and circumstances must be shown, that the court may decide whether it has been used or not. Burriss v. Wise and Hind, 2 Ark., 33; John Robins v. Absalom, Fowler, ib., 133.
Finding no error, the judgment of the court below is affirmed.