Branthover v. Monarch Elevator Co.

• Decision Date: 23 May 1919
• Citation: 173 N.W. 455,42 N.D. 330
• Parties: BRANTHOVER v. MONARCH ELEVATOR CO.
• Court: North Dakota Supreme Court

42 N.D. 330

173 N.W. 455

BRANTHOVER

v.MONARCH ELEVATOR CO.

Supreme Court of North Dakota.

May 23, 1919.

Syllabus by the Court.

This action is based on a lien for threshing grain. The jury found a verdict in favor of the plaintiff for $237.50. On the trial there was really but one issue, and upon this issue the evidence was conflicting, and the jury found for the plaintiff. When there is a real conflict of testimony, as there is in this case, the jury must be left to do the guessing, and it is not for the court to guess that the jury guessed wrong.

Appeal from Ransom County Court; F. S. Thomas, Judge.

Action by W. L. Branthover against Monarch Elevator Company. Verdict for plaintiff, motion for new trial denied, and defendant appeals. Affirmed.Kvello & Adams, of Lisbon, for appellant.

M. O. Thompson and Chas. S. Ego, both of Lisbon, for respondent.

ROBINSON, J.

This action is based on a lien for threshing grain. The jury found a verdict in favor of plaintiff for $237.50, and defendant appeals. On the motion for a new trial, the court very properly said: There is no error of law entitling the defendant to a new trial.

On the trial there was really but one issue: Did the conduct of the plaintiff estop him from asserting his lien upon the grain or from recovering the value of his special property in the grain threshed by the plaintiff and purchased by the defendant? Upon this issue the evidence was conflicting, and the jury found for the plaintiff.

Furthermore, it now appears to this court that there have been two jury trials, and in each of them the jury found for the plaintiff. The first verdict was set aside for errors of law. 33 N. D. 454, 186 N. W. 927. Now, for the second time. defendant appeals and asks the court to grant a new trial regardless of the fact that 24 jurors and a judge have concurred in the verdict-and the two trials and the appeals have probably cost twice as much as the judgment. There is no sense in that kind of litigation. A person who goes to law must realize that he takes a chance on the peril of dies. When there is a real conflict of testimony-as there is in this case-the jury must be left to do the guessing, and it is not for the court to guess that the jury guessed wrong. Were it otherwise, we might as well do away with jury trials.

Under the statute when a person runs a threshing machine and threshes grain for another, he has a lien upon the grain threshed for the value of his services upon filing a proper...