Sheridan Bros. v. Dealy

• Decision Date: 24 October 1924
• Docket Number: No. 36161.,36161.
• Citation: Sheridan Bros. v. Dealy, 198 Iowa 877, 200 N.W. 335 (Iowa 1924)
• Parties: SHERIDAN BROS. v. DEALY.
• Court: Iowa Supreme Court

198 Iowa 877

200 N.W. 335

SHERIDAN BROS.

v.DEALY.

No. 36161.

Supreme Court of Iowa.

Oct. 24, 1924.

Appeal from District Court, Cherokee County; C. C. Bradley, Judge.

Plaintiffs secured a verdict in the court below which on motion of the defendant was set aside because of misconduct on the part of the prevailing party From this order the plaintiffs appeal.Affirmed.Molyneux, Maher & Meloy, of Cherokee, for appellants.

Fred H. Free, of Sioux City, and Herrick & Herrick, of Cherokee, for appellee.

VERMILION, J.

The only question presented on the appeal arises upon the action of the lower court in setting aside the verdict in favor of appellants and granting a new trial.

The action is for the recovery of commissions alleged to have been earned by plaintiffs, and agreed to be paid by defendant, for finding purchasers for various parcels of real estate owned by defendant.F. J. Muench appears to have been interested with plaintiffs in some of the transactions.It was averred in the petition that Muench had assigned his claim to plaintiffs, and a written assignment to them of all his interest in and to the Dealy commissions was introduced in evidence.

Various defenses were presented to the claims to recover on account of the different transactions.As to two of these, spoken of in the record as the Pierson and the Fairchild deals, defendant denied any promise to pay plaintiffs a commission.

John Sheridan, a member of the plaintiff firm, testified to a promise on defendant's part to pay them a commission of $200 out of the money he was to pay to Pierson; and that he agreed to pay them a commission of $1,000 in the Fairchild deal.Muench also testified to the latter promise.

The motion for a new trial was based on eight distinct grounds involving the correctness of various instructions, the sufficiency of the evidence to sustain the verdict, a claim that the verdict was excessive, and a charge of misconduct on the part of plaintiffs in giving and presenting false testimony.The motion was supported by the affidavits of two witnesses to the effect that in a conversation between John Sheridan and the defendant in the presence of the witnesses, after the verdict had been returned, Sheridan admitted that there was no understanding or agreement with defendant for a commission in the Fairchild deal, and that defendant was not to pay a commission in the Pierson deal, but only to hold out $200 of the money due Pierson on final settlement; admitted that he and Muench had testified falsely, and that defendant's testimony was true; and further said:

“You know I told you, Hugh, that if we ever went to trial we would swear to anything to beat you, and that is just what we did, and we got the verdict too.”

John Sheridan admitted being present with the defendant and the witnesses on the occasion in question, but denied making the statements attributed to him The parties making the affidavits in support of the motion were produced in court and examined and cross-examined in relation to the matter.

[1] The granting of a new trial is a matter resting largely in the sound discretion of the trial court, and the exercise of this discretion will not be interfered with, where a new trial has been granted, unless it appears to have been abused.Post v. City of Dubuque, 158 Iowa, 224, 139 N. W. 471;Woodbury County v. Dougherty, 161 Iowa, 571, 143 N. W. 416;Rosche v. Bettendorf Axle Co., 168 Iowa, 461, 150 N. W. 663;Benefiel v. Semper, 185 Iowa, 410, 170 N. W. 737;Perry National Bank v. Engnell (Iowa)199 N. W. 283.

[2][3] It was clearly within the discretion of the trial court to grant a new trial upon a showing tending to establish that the successful party gave and produced false testimony Pickering v. Kirkpatrick, 32 Iowa, 163:First National Bank v. Ry. Co., 61 Iowa, 700, 17 N. W. 48;...