Barringer v. Stoltz

• Court: Minnesota Supreme Court
• Writing for the Court: COLLINS
• Citation: Barringer v. Stoltz, 39 Minn. 63, 38 N.W. 808 (Minn. 1888)
• Decision Date: 03 July 1888
• Parties: BARRINGER ET AL. v STOLTZ.

39 Minn. 63

38 N.W. 808

BARRINGER ET AL.vSTOLTZ.

Supreme Court of Minnesota.

July 3, 1888.

(Syllabus by the Court.)

The sufficiency of the evidence to sustain a verdict will not be considered upon appeal unless a motion for a new trial has been passed upon in the court below. Following Byrne v. Railway Co., 29 Minn. 200,12 N. W. Rep. 698.

Testimony in this case, when plaintiff rested, examined, and held sufficient to justify the court in refusing to dismiss upon defendant's motion.

Appeal from district court, Ramsey county; WILKIN, Judge.

C. D. & T. D. O'Brien, for appellant.

E. M. Card and Lusk & Bunn, for respondents.

COLLINS, J.

Action to recover commissions alleged to have been earned by plaintiffs as real-estate brokers, in the sale of property belonging to defendant. Upon a trial before a jury, plaintiffs had a verdict. A case was then duly made and settled; judgment entered for the amount of the verdict, with interest, etc.; and from the judgment defendant appeals. Four distinct assignments of error are specified in appellant's brief, the first of which, that the verdict is not justified by the evidence, cannot avail, because no motion for a new trial has been made in the court below. Unless this be done the sufficiency of the evidence to support the verdict will not be considered upon appeal. Byrne v. Railway Co., 29 Minn. 200,12 N. W. Rep. 698. The settled case shows that when the testimony was all in, defendant “renewed” his motion for a verdict, which motion was denied by the court. No exception seems to have been taken to the ruling, nor do we find from the record that such a motion had previously been made, nor do we discover that defendant submitted any requests, or that any prayed for by him were refused. We assume, then, that the third and fourth assignments relate to the refusal of the court to dismiss when plaintiff rested, and, if so, both are disposed of while commenting upon the second.

The principal issue submitted to the jury was, as stated by the learned court in its charge, whether plaintiffs had been, as they insisted, employed or authorized by defendant to sell his land. It was conceded that they had procured a purchaser, able and willing to buy; but defendant, by his answer, and as a witness, emphatically denied the authority or employment. This contention was decided by the jury in plaintiffs' favor. The appellant now argues that plaintiffs failed to make out a case, because their testimony showed a...