Capital Lumber Co. v. Barth

• Decision Date: 29 July 1905
• Citation: 81 P. 994,33 Mont. 94
• Parties: CAPITAL LUMBER CO. v. BARTH et al.
• Court: Montana Supreme Court

81 P. 994

33 Mont. 94

CAPITAL LUMBER CO. v. BARTH et al.

Supreme Court of Montana

July 29, 1905

Appeal from District Court, Lewis and Clark County; J. M. Clements Judge.

Action by the Capital Lumber Company against John C. Barth and another. From a judgment for plaintiff and from an order denying a new trial, defendants appeal. Affirmed.

H. Sol. Hepner, for appellants.

Word & Word and C. W. Wiley, for respondent.

BRANTLY C.J.

Appeals from a judgment in favor of plaintiff and from an order denying defendants' motion for a new trial. The action was brought to recover the price of goods, wares, and merchandise alleged to have been sold to defendants by plaintiff, and also by another, whose claim plaintiff, holds as assignee for value. The complaint is in the ordinary form for goods, wares, and merchandise sold and delivered. The defendants answered separately putting in issue all the material allegations of the complaint. Upon a trial to a jury the court submitted the case for certain special findings and a general verdict. The general verdict was in favor of plaintiff. The special findings are inconsistent with each other and also the verdict. The court, without objection on the part of defendants, or motion for judgment on the findings, entered judgment on the general verdict. The errors assigned are that the evidence is insufficient to sustain the verdict as to defendant Schwegler, that the special findings are so contradictory and inconsistent that they do not support the judgment, and that the court erred in refusing certain instructions to the jury requested by defendants.

1. The motion for a new trial was joint. The contention is made that there is no evidence to support the verdict as against defendant Schwegler, and, since this is so, a new trial should be granted both defendants. This contention cannot be sustained. There is a conflict in the decisions upon the question whether, when a joint motion is made, the trial court should grant a new trial as to the one or more movants who appear to be entitled thereto (Spelling, New Trial and Appellate Practice, §§ 372, 395), some of the courts holding as this author points out, that a party having a ground for a new trial loses the benefit of it by proceeding jointly with another who is not so favorably situated. We know of no authority to the effect that all the losing parties may insist upon a new trial because one has ground therefor which does not in any way affect the merits of the judgment as to the others. Cases may arise where the rights of the losing parties are so intimately connected that what has prejudiced one during the course of the trial may also have prejudiced the other, and the court would feel constrained to grant a new trial as to all in order to remedy the wrong against the one as to whom otherwise the judgment should be allowed to stand. Such were the cases of Strand v Griffin et al. (C. C.) 109 F. 597, and Gas Light Co. v. Lansden, 172 U.S. 534, 19 S.Ct. 296, 43 L. Ed., 543. In the first of these two cases there was no evidence to sustain the verdict as against one defendant. The court granted a new trial as to all, for the reason that it could not say that evidence admitted as to transactions between the plaintiff and the one defendant did not enhance the amount of the verdict as to the others. A like situation was presented in Gas Light Co. v. Lansden.

This action is for debt. The controversy in the evidence was as to whether one Greene, who purchased the goods, wares, and merchandise, was authorized to do so upon the credit of defendants as their agent. The jury found that he was. The evidence might be wholly insufficient to charge one of the defendants and not the other. But the evidence as to the one could not in any way affect the rights of the other, and the rule of the cases cited does not apply. Under these circumstances, since the assignment goes to the insufficiency of the evidence as to the defendant Schwegler alone, and a new trial is demanded as to both, and not as to Schwegler only, the district court properly denied it so far as the motion was based on it.

2. It is said that, since the special findings are contradictory and inconsistent, they therefore do not sustain the judgment. The court ignored the findings, and rendered judgment upon the general verdict. No complaint is made that this is error. Such being the case, we do not think the contradictions or inconsistencies in the...