The defendant in this case, claims, that in three particulars, the verdict was against the evidence, and in consequence asks for a new trial.
1. It is said, that the action was prematurely brought; that the plank were sold upon a credit of sixty days ; and within that period the action was commenced. The only testimony upon this point came from the parties themselves. The plaintiff says, the sale was for cash, on the delivery of the plank, deducting sixty days interest: — the defendant, that he bought them on a credit of sixty days, but told the plaintiff that he *332might want to pay before, and if he did, should claim thepri--1 r j r of so doing, deducting the interest. Here was one -witness against another, and both equally interested. It was for the jury to say, which of the two, under all the circumstances, was entitled to the most credit. Surely, it would be too much for this court to say, that the jury, upon this testimony, found a verdict manifestly against the weight of evi. dence.
2. It is further insisted, that the plank were not such as they were represented to be, when the contract was made. According to the statement of the defendant, they were represented as being good plank ; and according to that of the plaintiff, they were a fair lot. Respecting the quality of them, there was much conflicting testimony. The defendant and several witnesses testified, that a part were not good plank. The plaintiff and a like number of witnesses testified, that they were a fair lot. The question upon this evidence was peculiarly within the province of the jury.
3. It is also said, that there was no acceptance of the plank, or any part of them, by the defendant; and consequently, the plaintiff by the provisions of the statute for the prevention of frauds and perjuries, is precluded from a recovery. Stat. 247. tit. 39. s. 2. Now, upon this subject, it was agreed, by the parties, that by the terms of the contract, the plank were to be delivered upon a wharf in Norwich, and they were all there actually delivered. Was there any act done, by the defendant, from which the jury might infer an acceptance of the whole, or any part, of the plank ? The defendant does indeed say, that he never received them ; but he admits, that he saw a part of them on the wharf, and said nothing to the plaintiff about not delivering the residue, until after the whole were delivered ; and then he refused to take them. He said to one witness, that he had bought the plank ; and to another, who applied to him to buy a part, that he could not spare any of them, as he calculated to send them away.
From the silence of the defendant, when he had an opportunity of examining a portion of the plank on the wharf; his suffering the plaintiff to go on and complete the delivery, without objection on his part; and his declarations to the witnesses that he had bought them, and could not spare any of them, we think the jury, in coming to the conclusion that *333there had been such an acceptance as to take the case out of , ,. , .. , . . , the statute, did not so manifestly err as to make it our duty to send the cause to another jury.
Upon all the points there was conflicting testimony ; and it was for the jury, who had an opportunity of seeing and hearing the witnesses, and observing the manner in which they testified, to draw their own conclusions. The question is not now, whether the evidence detailed in the motion, is such, that, had the cause been tried before us, it would have brought our minds to a different result from that to which the jury have come, but whether it is such as to satisfy our minds that the verdict is manifestly wrong.
It may sometimes happen, that a jury may entirely mistake the evidence, or draw from it a palpably wrong conclusion-U nder such circumstances, the power of a court of justice to send the cause to be examined before another jury, has been repeatedly exercised, and is fully established. The principle is a highly salutary one, and calculated, when discreetly used, to inspire confidence in the trial by jury — that verdicts clearly and manifestly wrong, may not be placed entirely beyond the corrective power of the law. But, at the same time, it is a power to be rarely and cautiously exercised, and only in cases where manifest injustice has been done. It ought not to be carried so far as to subject every verdict to a revision before the judges, and render the trial by jury a mere matter of form. This view of the subject is in accordance with the English decisions. Thus Tindall, C. J., speaking of verdicts against the weight of evidence, says, that the court in such case, “ ought to exercise, not merely a cautious, but a strict and sure judgment before they send the cause to a second jury. The general rule under such circumstances, is, that the verdict once found shall stand ; the setting it aside is the exception» and ought to be an exception of rare and almost singular occurrence.”—Melin v. Talyor, 3 Bing. N. C. 109.
For these reasons, we think a new trial ought not to be granted.
In this opinion the other Judges concurred.
New trial not to be granted.