(dissenting). The plaintiff and his witnesses gave testimony which, if credible, is sufficient to sustain the verdict. The defendant and his attorney contradicted this testimony, and gave an entirely different version of the transaction, and their testimony is corroborated by the proposed written contract of sale. The plaintiff has endeavored to explain the admissions contained in that instrument, and, though I am disposed to disagree with the jury’s verdict, they are the judges of questions of fact and of the credibility of witnesses. If under the judge’s charge the jury had been properly instructed as to the credibility of witnesses and the weight to be given to their testimony in view of all the circumstances of the case, I should concur in the affirmance of the judgment.
I find, however, that the charge was not only open to misconstruction on the part of the jurors, but I am inclined to believe that the verdict is a direct result of the objectionable part of the charge. The trial justice told the jury:
“Take the case, and go over the evidence carefully.^ Study the interest of the witnesses and the probabilities of their stories. * * * The plaintiff is an interested witness, as he is asking you to give him money damages. Mr. Osterman is an interested witness, as he is going to participate in the recovery, if your verdict is in favor of the plaintiff. The defendant is an interested witness. The only really disinterested witness is Mr. Atterbury, who has explained his version of the transaction to you in the witness stand. It is for you to say whom you believe in this matter, and to decide the case accordingly.”
Concededly Mr. Atterbury was not interested in the verdict in any direct or technical sense; but he had close associations with Mr. Osterman, who was directly interested in the result of the action, and upon his own testimony the jury might well have found him biased. I certainly think that a charge that he was the “only really disinterested witness” took away from the jury the question of how far any possible bias might affect his credibility; and the credibility of witnesses, whether interested or disinterested, and what effect shall be given to their testimony, are always questions for the jury and not for the court. In this case the decision of the jury must have depended largely upon whether they believed the story of Mr. Atterbury, the vendee in the proposed contract and the business associate of one of the brokers, or that of Mr. Bernstein, the attorney of the defendant.
I believe that a perusal of their testimony shows that neither is willfully testifying falsely; but one of them must be mistaken as to the details of the transaction. Either of them might be misled, not by direct personal interest in the result, but by interest in one of the parties, and the jury should not have been'told to credit the story of one, rather than that of the other.
The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.