Northwestern Electric Equipment Co. v. Leighton
| Decision Date | 22 March 1923 |
| Docket Number | 5058. |
| Parties | NORTHWESTERN ELECTRIC EQUIPMENT CO. v. LEIGHTON ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Custer County; Frank P. Leiper, Judge.
Action by the Northwestern Electric Equipment Company against A. C Leighton and others. Verdict for plaintiff against defendant named, C. W. Butler, and Kenneth McLean, and, from an order granting new trial, plaintiff appeals. Affirmed.
W. C Packer and Rudolph Nelstead, both of Miles City, for appellant.
Loud & Leavitt and Geo. W. Farr, all of Miles City, for respondents.
This action was instituted by the Northwestern Electric Equipment Company against A. C. Leighton, C. B. Towers, C. W. Butler Charles E. Coggshall, Kenneth McLean, and J. J. McGill. In the complaint it is charged that these defendants, with one Fred Schmalsle, associated themselves as an unincorporated society or committee for the purpose of installing ornamental lights upon certain streets in Miles City; that the association assumed the business name "Citizens' Committee" or "Citizens' Street Lighting Committee," and as such duly appointed McGill agent to purchase the necessary merchandise; that through McGill the order for the materials was transmitted to plaintiff, the order accepted, and the materials furnished. The other allegations are not material here. Apparently the defendant Coggshall was not served with process and he did not appear. McGill filed a separate answer, and the defendants Leighton, Towers, Butler, and McLean a joint answer, which put in issue all the material allegations of the complaint. At the opening of the trial the cause was dismissed as against McGill and he became the chief witness for the plaintiff. A motion for a nonsuit was sustained as to defendant Towers, and he was dismissed from the action. A verdict was returned in favor of the plaintiff for the amount claimed against the defendants Leighton, Butler, and McLean, but upon their motion a new trial was granted, and plaintiff appealed from the order.
The order is general in terms, and will be sustained if it can be upon any ground mentioned in the motion for new trial. McVey v. Jemison, 63 Mont. 435, 207 P. 633. The grounds relied upon were insufficiency of the evidence to justify the verdict, and errors in law occurring at the trial.
So far as it was based upon the first ground, the motion was addressed to the sound legal discretion of the trial court. If errors in law were committed by the court, which prejudiced the substantial rights of the defendants, they were entitled to a new trial as a matter of right. There is not involved any question of ostensible agency or ratification of an unauthorized act of an agent. Plaintiff must stand or fall by its allegations that the "committee" mentioned actually existed; that defendants were members thereof; that McGill was duly authorized to act for it and that credit was extended to it. These were the four primary questions before the lower court, and, from the record as it reflects upon them, the propriety of the order granting a new trial is to be determined. The same judge who presided at the trial of the cause presided in court when the motion for a new trial was granted. He occupied a peculiarly advantageous position, in that he heard the witnesses testify, observed their demeanor in court, and was better able to estimate their credibility and the weight to be given to their testimony than are the members of this court, and, since the personal presence and deportment of a witness are often prime factors in the determination of the credit to be given to his testimony, this court and other courts of last resort generally recognize and enforce the rule that where there is a substantial conflict in the evidence the order granting or refusing a new trial will not be disturbed, unless it appears that the discretion of the court has been abused. Slater v. Bright Hotel Co., 59 Mont. 230, 196 P. 152.
It is a corollary to the foregoing rule--
"That an order granting a new trial will not be set aside so readily as an order denying one; the reason being that the latter ends the case, so far as the trial court is concerned, whereas the former does not, but merely restores the parties to the same condition in which they were before the trial." Gibson v. Morris State Bank, 49 Mont. 60, 140 P. 76.
And there is not any incongruity between this position and the other one, assumed consistently by this court since the decision in Orr v. Haskell, 2 Mont. 225, that a verdict should not be set aside except for cogent reasons. While the right of trial by jury is a substantial one, to be respected at all times, insufficiency of the evidence to justify a verdict has been a ground for a motion for a new trial since the organization of our courts in 1864, and some meaning must be given to the statute.
The questions of fact suggested above were for determination by the jury in the first instance, but that determination was subject to review by the trial court on a motion for a new trial, and, if the presiding judge was satisfied, as he must have been, that the preponderance of the evidence was not with the plaintiff, it was his duty to set the verdict aside, and the order made under such circumstances will not be disturbed on appeal. Fadden v. Butte Miners' Union, 50 Mont. 104, 147 P. 620.
No useful purpose would be served by setting forth even a brief synopsis of the evidence. We content ourselves with saying that the record presents a sharp conflict in the testimony touching the existence of the committee, the personnel of its membership, if such a committee did exist, and the authority, if any, conferred upon McGill.
Upon the trial, plaintiff secured the admission in evidence of a letter written by McGill to plaintiff and the reply thereto also six letters written by defendant Butler to plaintiff, and the reply to one of them. W. A. Jordan was president of the plaintiff corporation. W. B. Jordan was chairman of the board of directors, and had authority to represent the corporation in the negotiations concerning this account. While upon the witness stand, W. A. Jordan identified one letter written by W. B. Jordan to defendant McLean and others, one to C. H. Mott, the...
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