Schoof v. Hoagland

• Decision Date: 02 June 1921
• Docket Number: 4822
• Citation: 183 N.W. 132,44 S.D. 184
• Parties: WILLIAM SCHOOF, Plaintiff and respondent, v. F. E. HOAGLAND, Defendant and appellant.
• Court: South Dakota Supreme Court

44 S.D. 184

183 N.W. 132

WILLIAM SCHOOF, Plaintiff and respondent,

v.

F. E. HOAGLAND, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Potter County, SD Hon. Joseph H. Bottum, Judge #4822--Affirmed Jean F. Sargent, Sutherland & Payne Attorneys for Appellant. O'Keefe & Auldridge Attorneys for Respondent. Opinion filed June 2, 1921

McCOY, J.

Action to recover commissions on alleged sale of real estate. Verdict for defendant. From an order granting a new trial the defendant appeals.

The motion for new frial, among other things, was based on the insufficiency of the evidence to sustain the verdict. We are of the view that the evidence to sustain the verdict was of such a conflicting nature that different persons might reasonably have drawn different conclusions therefrom. Under such circumstances the order granting a new trial should not be reversed.

Finding no error in the record, the order appealed from is affirmed.

WHITING, J. (dissenting.)

It is well settled in this state that, where the evidence is conflicting so that from it different persons might reasonably draw different conclusions, there is vested in the trial court a discretion as to granting a new trial, which discretion will be fully recognized on appeal. Gamble v. Keyes, 166 N.W. 134. However, in this case there is to be found no conflict of evidence—not a single particular wherein there is a dispute—and respondent has not suggested that the ruling of the trial court should be sustained on the ground that such ruling was an exercise of discretion based on conflict of evidence. His contention is that it should be sustained on the grounds set forth in his specifications of error, being the grounds upon which he based his motion for new trial, namely, that the evidence was insufficient, in certain essentials, to support the court's direction of verdict. While, in case of a conflict in the evidence, a trial court is vested with discretion in granting or refusing a new trial, where the evidence is insufficient to support some essential element of a cause of action or defense, there is vested in the trial court no discretion as to what his ruling shall be upon a motion for new trial.

The contract between these parties was evidenced by correspondence had between them; and respondent in his brief very frankly says:

"The sole issue on this appeal is whether the defendant could, without liability to the plaintiff, sell his land...