Fox v. Bellon, 8182

• Decision Date: 17 May 1965
• Docket Number: No. 8182,8182
• Citation: 136 N.W.2d 134
• Parties: Earl FOX and William G. Wilson, Plaintiffs and Respondents, v. Adam BELLON, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 134

136 N.W.2d 134

Earl FOX and William G. Wilson, Plaintiffs and Respondents, v. Adam BELLON, Defendant and Appellant.

No. 8182.

Supreme Court of North Dakota.

May 17, 1965.

Rehearing Denied July 28, 1965.

Syllabus by the Court

1. Upon an appeal from a judgment rendered in an action not triable anew in the Supreme Court, neither errors of law that do not appear on the face of the judgment roll nor the sufficiency of the evidence may be reviewed in the absence of specifications of error; but, where the appeal is also taken from the order denying new trial and specifications of error and the insufficiency of the evidence were assigned in support of the motion for new trial, this court will review the correctness of the order in the light of the specifications assigned.

2. Whether a new trial shall be granted lies largely within the sound discretion of the trial court and the trial court's action in this regard will not be disturbed on appeal, except in case of abuse of that discretion.

3. A verdict will be sustained upon appeal against a challenge of insufficiency of the evidence when the evidence, though conflicting, is legally sufficient under the instructions to sustain the verdict.

4. It is permissible for counsel in his argument to the jury, in an action based on contract to recover damages, to use a medium, such as a blackboard upon which is written items, to illustrate claims and offsets, providing they have support in the evidence.

5. Counsel is allowed great latitude in the presentation of his argument to the jury, subject to regulation and control of the court whose duty it is to confine the argument within proper limits.

6. The trial court, in ruling on a motion for new trial, may consider an assignment of misconduct alleged ot have occurred during the trial, even though the moving party made no objection or failed to invoke the action of the trial court with respect thereto at the time of its occurrence.

7. The trial court is clothed with a broad discretion in passing on the effect of an irregularity during the course of the trial, in determining whether a new trial should be granted, because a fair trial was provented thereby.

8. For reasons stated in the opinion, the trial court is held not to have abused its discretion in deying new trial for misconduct of counsel during rebuttal argument to the jury.

9. Whether evidence should be excluded for lack of foundation rests largely in the discretion of the trial court and, on appeal, trial court's ruling will not be disturbed in absence of showing it affected the substantial rights of the parties. Rule 61, North Dakota Rules of Civil Procedure.

A. O. Ginnow, Jamestown, for defendant and appellant.

Mackenzie & Jungroth, Jamestown, and Milton K. Higgins, Bismarck, for plaintiffs and respondents.

TEIGEN, Judge.

The defendant has appealed from the judgment and the order denying a new trial.

The plaintiffs farm near Coleharbor, North Dakota, and are custom combiners. The defendant farms near Jamestown, North Dakota. This action is brought to recover for combining and hauling the defendant's flax crop. The defendant answered admitting the work but denied that the terms of the contract were as alleged in the complaint. He also counterclaimed for repair parts, gasoline, oil, labor furnished the plaintiff as an offset, and for damages for negligent work causing crop loss. The case was tried to the jury. The jury returned a verdict in favor of the plaintiffs in the amount of $1,271.87 and dismissed defendant's counterclaim for crop loss.

The plaintiffs, as respondents on this appeal, assert that, since specifications of error were not served with the notice of appeal, our review is limited to those errors appearing on the face of the judgment roll. We have so held. Odegaard v. Investors Oil, Inc., N.D., 118 N.W.2d 362. The defendant, however, did serve specifications of error with his notice of motion for new trial and he has also appealed from the order denying the motion. We will review the correctness of the order with respect to properly assigned specifications of error and insufficiency of the evidence.

The defendant specified as error: (1) the insufficiency of the evidence to justify the verdict; and (2) errors of law. The defendant abandoned his claim for damages for crop loss. He does not specify it was error to dismiss the counterclaim for damages based on alleged negligence. We will first consider the specification of insufficiency of the evidence.

The claims made by the respective parties are in hopeless conflict. The parties are agreed that 485 acres of flax were combined and that the defendant supplied gasoline, oil, repairs, and labor for which he was entitled to be reimbursed, but they disagree as to the amount of these respective items and on the contract terms.

The plaintiffs contend it was agreed the defendant would pay $3.00 per acre for combining, $1,50 per acre for swathing, and five cents per bushel for the first five miles, plus one-fourth cent per bushel per mile for hauling. The defendant contends it was agreed he would pay $3.00 per acre, which included combining, swathing, and hauling of the grain. Both parties agree it was not contemplated there would be any swathing done when the job was commenced but, because of the rough, newly-broken ground on which the flax was grown and the fact that the flax crop was not fully ripe, it was found advantageous to windrow a portion of the field before combining. The plaintiffs contend a supplementary oral agreement was entered into whereby the defendant agreed to pay $1.50 per acre for the swathing. The defendant contends it was plaintiffs' decision to swath the flax for the reason that the job could be completed more quickly and the plaintiffs thus could make more profit on the job, that the defendant did not want the flax windrowed because it would result in a loss of grain, and that he made no agreement to pay anything for swathing.

The plaintiffs contend the defendant's field was extraordinarily rough with many unpicked rocks which caused breakdowns and slowed the work. The defendant contends the field was no rougher than ordinary newly broken land properly worked. The plaintiffs did not complete the job before going to Kansas, taking with them their outfit and crew to harvest milo (maize); however, they left one combine at the defendant's field to be used to complete the harvest. The parties agreed the defendant was to use the combine to finish the job, that he would pay the operating expenses, and that he would be reimbursed for such expenses and be paid for his labor.

There is disagreement as to the respective amounts to be allowed the defendant for his services and expenses. The defendant claims the sum of $203.38 for gas and oil furnished; the plaintiffs allowed $116.60. Defendant claims he expended $139.76 for repairs; the plaintiffs allowed $110.92. The defendant contends he earned $386.86 by his labor, having worked 58 days at the going rate of $200 per month; the plaintiffs have allowed $93 for 93 hours of labor at $1.00 per hour. It appears the defendant claims as offset approximately $409 more than allowed by the plaintiffs. The plaintiffs contend they earned about $323 more than is allowed by the defendant by including a charge for the swathing and hauling. Thus there is a difference between them of about $732. There are also other claims and counterclaims made by the respective parties to this action that need not be pointed out in this opinion. Suffice it to say, both parties admit that an oral contract was entered into and that the original contract was modified in some respects or that there were oral addenda; but there is hopeless conflict on practically every aspect and a voluntary settlement was impossible.

This court has said many times that whether a new trial shall be granted rests largely within the sound judicial discretion of the trial court and, unless an abuse of that discretion is shown, the action of the trial court will not be disturbed on appeal. State v. Hummel, 73 N.D. 308, 14 N.W.2d 368; Haslam v. Babcock, 71 N.D. 363, 1 N.W.2d 335; Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Hochstetler v. Graber, 78 N.D. 90, 48 N.W.2d 15. The trial court considered the sufficiency of the evidence and, in denying a new trial, confirmed the verdict of the jury. When the verdict is attacked in this court and the evidence, though conflicting, is legally sufficient to sustain the verdict under the instructions of the trial court, the verdict and the judgment will not be disturbed. Haslam v. Babcock, supra; Griffin v. Implement Dealers' Mutual Fire Ins. Co., 64 N.D. 146, 250 N.W. 780; Rickel v. Sherman, 34 N.D. 298, 158 N.W. 266; Branthover v. Monarch Elevator Co., 42 N.D. 330, 173 N.W. 455; Hampton v. Ross, 56 N.D. 423, 217 N.W. 845; Kraft v. Martell, 58 N.D. 58, 225 N.W. 79; Hochstetler v. Graber, supra; Jacobs v. Bever, 79 N.D. 168, 55 N.W.2d 512; Clark v. Josephson, N.D., 66 N.W.2d 539; Stokes v. Dailey, N.D., 97 N.W.2d 676.

We have examined the evidence as heretofore stated and find it is conflicting as to the claims made by the respective parties, and that there is substantial evidence to sustain the verdict of the jury. For these reasons, we will not interfere with the trial court's ruling denying motion for new trial on the ground of insufficiency of the evidence to justify the verdict.

We will next consider the defendant's specifications of errors of law.

The defendant's specifications of error may be grouped into two general grounds: (1) misconduct on the part of plaintiffs' attorney in his argument to the jury; and (2) admission into evidence of an exhibit without proper foundation.

In support of the specification of alleged misconduct on the part of counsel for the plaintiffs during rebuttal argument to the jury, the defendant assigns as error statements alleged to have been made in the argument which were improper, unfounded, and...