Olstad v. Stockgrowers Credit Corporation, a Corp.
| Decision Date | 19 March 1936 |
| Docket Number | 6376 |
| Citation | 266 N.W. 109,66 N.D. 416 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Stark County; Harvey J. Miller, Judge.
Action by E. H. Olstad, administrator of the estate of Fred F Butler, deceased, against the Stockgrowers Credit Corporation and another. From an order, both parties appeal.
Affirmed.
Syllabus by the Court.
1. On a motion for judgment notwithstanding the verdict, the evidence is considered in the light most favorable to the one in whose favor the verdict is rendered.
2. Such motion will not be sustained where there is an issue for the jury to determine.
3. A motion for judgment notwithstanding the verdict will be ordered only where it clearly appears that the moving party is entitled to such judgment on the merits as a matter of law and there is no reasonable probability that defects in the proof can be remedied upon another trial.
4. Where, upon motion for a new trial, the court orders a new trial unless the successful party agrees to a specified reduction in the amount returned by the jury, and the successful party declines to agree to the reduction, the loser is in no position to complain that the trial court was in error in granting this new trial conditionally.
5. In an action for conversion arising out of an attempted foreclosure of a chattel mortgage the defendant may show in mitigation of damages the amount of such lien to which the plaintiff's rights were subject, and the amount shown must be credited on the value of the property converted.
6. Where, in a conversion case tried to a jury, special propositions were submitted to the jury requiring it to find the value of the various items of property said to have been converted, and the jury makes such findings and renders a general verdict for a specified amount, and it appears from the record that the amount of the general verdict is unjustly excessive, the amount of credit to be allowed being undisputed, the court, upon motion for a new trial, is justified in granting such new trial conditioned upon acceptance of reduction in the amount when the error is clearly one of calculation, and the new trial is demanded because of excessive damages allowed upon insufficient evidence to justify the amount, and because of passion or prejudice, as the court must act in furtherance of justice and does not invade the province of the jury in correctly subtracting amounts.
C H. Starke, for plaintiff -- appellant.
W. C. Crawford, for defendants -- appellants.
Plaintiff brought action to recover damages in the sum of $ 35,000 for the conversion of personal property. The defendants deny any conversion. They allege valid chattel mortgages upon the property said to have been converted because of the attempted foreclosure and pray for judgment aggregating $ 23,210.00, and that if it be found there was a conversion, this amount be credited on the judgment.
The case was submitted to a jury for a general verdict and on special findings as to the value of the property said to have been converted. In answer to the special questions the jury found the value of the property converted was $ 15,295.81 and in the general verdict found for the plaintiff in the sum of $ 1245.81.
The defendants moved for judgment notwithstanding the verdict or for a new trial, alleging insufficiency of the evidence to justify the verdict and excessive damages given under passion or prejudice. This motion came on for hearing before the successor of the trial judge. The court denied the motion for judgment notwithstanding the verdict, but reduced the amount allowed from $ 1,245.81 to $ 795.81, with interest and costs, and provided that "Upon the acceptance of said reduction by the Plaintiff, the motion for new trial is also denied and upon the failure of the Plaintiff to consent to said reduction as above stated, an order for new trial will be granted."
Both parties appeal -- the effect being that the defendants appeal from that part of the order denying the motion for judgment notwithstanding the verdict, and the plaintiff from the granting of the new trial conditionally.
On motion for judgment notwithstanding the verdict, the evidence is considered in the light most favorable to the one in whose favor the verdict is rendered. Hager v. Minneapolis, St. P. & S. Ste. M.R. Co. 53 N.D. 452, 206 N.W. 702; Pederson v. O'Rourke, 54 N.D. 428, 209 N.W. 798.
Such motion will not be sustained where there is an issue for the jury to pass upon under the evidence (Nelson v. Grondahl, 12 N.D. 130, 96 N.W. 299) and will be ordered only in a case where it clearly appears from the whole record that the moving party is entitled to such judgment on the merits as a matter of law. Sheffield v. Stone, O.W. Co. 49 N.D. 142, 190 N.W. 315; Baird v. Stephan, 52 N.D. 568, 204 N.W. 188; Volk v. Hirning, 56 N.D. 937, 220 N.W. 446. It must also appear there is no reasonable probability that defects in the proof necessary to support a verdict may be remedied upon another trial. First State Bank v. Kelly, 30 N.D. 84, 152 N.W. 125, Ann. Cas. 1917D, 1044; Larson v. Albers, 53 N.D. 340, 205 N.W. 875. Not only did the jury return a verdict in favor of the plaintiff, but there was evidence upon which the jury could return such a verdict. Consequently the court was correct in denying defendants' motion for judgment.
By ordering a reduction in the judgment, and a new trial in case the plaintiff refused to accept the reduction, the court in effect granted the defendants' motion for a new trial, when plaintiff refused to accept the reduction.
The plaintiff says the court, in granting a new trial, is limited to the causes set forth in § 7660 of the Supplement and that, under the facts in this case, subdivision 5 thereof is the only portion which is applicable. This permits the court to grant a new trial where ...
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