Heyrock v. McKenzie
| Decision Date | 18 October 1899 |
| Citation | 80 N.W. 762,8 N.D. 601 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pembina County; Sauter, J.
Action by John Heyrock against R. K. McKenzie. Verdict was for plaintiff, and from an order denying a new trial defendant appeals.
Affirmed.
W. R Garrett and Garrett & Gordon (Bosard & Bosard, of counsel) for appellant.
M Brynjolfson (Cochrane & Corliss, of counsel), for respondent.
WALLIN J. YOUNG, J., took no part. Fisk, J., of the First District, sitting by request.
It appears by this record that a jury trial was had, and resulted in a verdict for the plaintiff; whereupon the defendant gave notice of intention to move for a new trial upon five grounds, none of which, however, are urged in this Court except the following: First, "newly-discovered evidence material to the party making application, which he could not, with reasonable diligence, have discovered and produced at the trial;" second, "insufficiency of the evidence to justify the verdict." Upon the second ground, the motion was based upon the minutes of the court; the first ground was presented upon affidavits. The motion for a new trial was denied, and defendant has appealed from the order denying the same.
The action is brought to recover an alleged balance of $ 129.80 due plaintiff for threshing defendant's grain in the year 1891. The only particular specified in which the evidence is claimed to be insufficient to justify the verdict is as follows, namely: "That the verdict herein is for the full amount claimed, whereas the defendant offered a receipt in payment of the account sued upon for forty ($ 40) dollars, admittedly executed by the plaintiff." The receipt referred to in this specification was in evidence. Plaintiff admits that he signed the same, and delivered it to an agent of the defendant, one Pratt, upon receipt of $ 40, and that the amount so paid to him was on account of plaintiff's services in threshing grain for the defendant. The receipt was ignored by the jury. The controversy at the trial over this receipt turned wholly upon the date of its actual execution and delivery. Plaintiff's contention was that the receipt was given in the year 1887 for threshing done by him for defendant in that year, while defendant contended that the document was given in 1891, in which year it apparently bears date, for threshing done in the last-named year, and that the amount named in the receipt was paid to plaintiff that year, through defendant's agent, upon the account in suit. The original receipt is attached to the judgment roll, and is somewhat torn and erased, and the plaintiff claims that the receipt has been altered since he delivered it. The evidence upon this feature is voluminous, and squarely conflicting. The testimony pro and con is direct and positive, as well as indirect and circumstantial, and it is difficult to say which side has the preponderance of the evidence. But, under an established rule of practice, this Court will not ordinarily disturb a verdict upon a question of mere fact, where there is substantial evidence upon which the verdict may rest. This Court has repeatedly applied this rule. See Taylor v. Jones, 3 N.D. 235, 55 N.W. 593; Block v. Walker, 7 N.D. 414, 75 N.W. 787. See, also, Bedow v. Tonkin, 5 S.D. 432, 59 N.W. 222.
The remaining ground of the motion for a new trial is that of newly-discovered evidence. This feature of the motion for a new trial was addressed to the sound judicial discretion of the trial court, and the action of the trial court upon the motion is conclusive upon this court, unless it appears that the discretion vested in the court below has been abused. See Barrett v. Railroad Co., 45 N.Y. 628. See also, Hayne, New T. & App. § 87. The rule is inflexible that a new trial will not be granted upon the ground of newly-discovered evidence...
To continue reading
Request your trial