Upon mature consideration, we can, find nothing which would justify us in reversing the order denying a new trial in this case. We have reached this conclusion with much hesitation ; for in view of what seems to us to be a great preponderance of the evidence, (as it appears upon paper,) against the plaintiff, we are compelled to say that if it were for us to render a verdict, we should be slow to find against the defendant. But it does not follow that it is our duty to set aside the verdict. The case was, (for •aught that appears,) fairly tried by a struck jury called at •defendant’s request. There was considerable evidence whi ch, (though not satisfactory to us,) clearly tended to support *95Hie plaintiff’s claim; much also to the contrary. The jury, in the exercise of their undoubted prerogative to determine upon the comparative merits of opposing testimony, have brought in a verdict for the plaintiff. To set aside the verdict under these circumstances would be to substitute our opinion for the opinion of the jury, upon questions of pure fact, questions peculiarly within the province of a jury, and to disregard and override the settled rule and practice of this court. Moreover, it is not to be overlooked that the ■order denying a new trial, from Avbich the present appeal is taken, was made by the judge before whom the action was tried, who saw and heard the witnesses, and whose opportunities for appraising the testimony were therefore superior to those of this court.
We do not deem it necessary in this opinion to refer particularly to any portion, of the evidence in the case, except the receipt, Exhibit 1. This action was brought to recover compensation for work performed and material furnished in constructing and completing a certain piece of road-bed, (to wit, ten miles,) on the Winona and St.Paul Division of the St.Paul and Pacific Railroad. There was no controversy as to the fact that a special contract was entered into between plaintiff and defendant for the construction and completion of the same, for the gross sum of $40,000. Plaintiff, however, claimed that this contract had been abandoned, and that the work was not done, nor the materials furnished thereunder. Defendant claimed to the contrary. The receipt referred to, and ivhich was introduced in evidence by defendant, was, (so far as important,) as follows :
“ Winona Division, Saint Paul and Pacific Railroad Co.
To Charles A. F. Morris, Dr., Feb. 26, 1866. For labor performed and material furnished under his contract for construction on Winona & St. Paul Division of St. Paul & Pacific Railroad, Hastings Division.
Balance on 10 miles..............$1,000 00
* * (other items not necessary to be specified) 2,493 00
$3,493 00
*96“Winona Division. Received of Saint Paul and Pacific-Railroad Company, by the hands of William Crooks, chief engineer, three thousand four hundred and ninety-three dollars, in full for the above account.
Dated, etc. (Signed) Chas. A. F. Morris.”
The words, “balance on 10 miles $1,000” are explained by one of defendant’s witnesses as referring to the balance due on the $40,000 contract, on which $39,000 had been paid previously.
Defendant argues that this document is “ not only a receipt in full; it is a contract of acquittance, release, and discharge for all claims under the contract for the ten miles, together with a recognition of the contract, and, being such contract, is not explainable as a mere receipt would be and, further, that even conceding it to be only a receipt, it is just as conclusive of what it contains as any other written contract, unless it ivas obtained by fraud, or was given under a mistake, or the money receipted for was not paid ; and that, there being no evidence of fraud or mistake, or of the non-payment of the money, the receipt is in fact a bar to plaintiff’s recovery. We cannot agree to this. A receipt may be either a mere acknowledgment of payment, or it may also contain a contract. In the former case, and so far as it goes only to acknowledge payment, it is merely prima facie evidence of the fact of payment, and may be contradicted by oral testimony. But in so far as it contains a contract, it stands upon the footing of other writings containing contracts, and cannot be contradicted or varied by parol. 1 Greenl. Ev. § 305 ; 2 Taylor, Ev. § 1037. As the receipt under consideration does not purport to set out the terms of the contract to Avhich it refers, it cannot be said to contain that contract; neither can it be said to contain a “contract of acquittance, release and discharge,” any more than does any receipt in full. It must be regarded as a mere acknowledgment of payment, and, as such, its prima facie effect, as establishing full payment of the plaintiff’s claim, may be overcome by parol explanation shoiving that the full pay*97ment acknowledged was not in fact made. Ryan v. Ward, 48 N. Y. 204; Buckingham v. Oliver, 3 E. D. Smith, 129. Now, the plaintiff’s explanation of this receipt is that it was-given, because “the company wanted to make a clean record, or showing, in making some negotiations for money for the completion of the road;” that in fact he has had “no settlement with the company, and that he has always asserted and insisted on his claims against the company.” If the jury believed this explanation, we see no reason why, so far as the receipt is concerned, they might not properly -find that it ivas not conclusive on the question of full payment, and should not cut off the plaintiff’s recovery. If the case were one of a compromise, or of a settlement of unliquidated damages, a somewhat different effect might perhaps be given to the receipt. See Coon v. Knap, 8 N. Y. 402 ; Kellogg v. Richards, 14 Wend. 116 ; Ryan v. Ward, 48 N. Y. 204.
Defendant’s criticism upon the action of the jury, in view of the fourth and fifth instructions given at defendant’s request, are sufficiently answered, we think, by what we have already said, and by the considerations urged in reply to the same in the plaintiff’s brief.
As to the amount of the verdict, it is certainly very far below the plaintiff’s demand in his complaint, and below his estimate of the amount to which he deems himself entitled, as shown by his personal testimony. But taking the testimony of the plaintiff', of Skinner, Payte and Wallace, as it is affected by the testimony of Dodge, and considering the variety of opinions expressed as to the worth of the work done, we think the defendant is hardly justified in his remark that the verdict is purely arbitrary.
Order denying a new trial affirmed.