55 F. 755 | U.S. Circuit Court for the District of Montana | 1893
The issue presented in tills cause was tried at the last term of this court by a jury which rendered a verdict in favor of plaintiff and against defendant for the sum of |30,000. Defendant now comes into court, and petitions the court for a new trial of the cause. The principal ground assigned in support of the petition, and the one chiefly presented in the brief of defendant, is that the verdict was against the weight of evidence. It is admitted that there was a material conflict in the evidence upon the most material point in the case, and this cannot be disputed. The dispute pertained to the contract under which the money was paid to defendant. The plaintiff claimed and testified that the money was paid to the defendant conditionally; that the condition under which the money was paid was, in substance, that Ms accounts with and management of the affairs of the Granite Mining Company should he investigated, and, if they were found correct, the money should be refunded to him. Mr. L. M. Itumsey, who acted for defendant in this matter, claimed that the money was paid to defendant absolutely; the plaintiff admitting that he had wronged the company in letting a certain wood contract to one Hall for the
I believe these facts materially influenced the jury in reaching its verdict. They have exercised a considerable influence upon the mind of the court in considering this matter. It is claimed by counsel for defendant in their brief that plaintiff wished probably to cover up some other dereliction of duty to the defendant, and wished to stop further investigation. The only tiling which the witness Rumsey declares in his evidence that Plummer acknowledged he had wronged the company in was this wood contract. That was the talk,1 according to his evidence, between them. There is nothing in the evidence which would lead to any opinion that there was any other transaction plaintiff wished to cover up. As a general rule, when the evidence is conflicting, a court will not grant a new trial. 16 Amer. & Eng. Enc. Law, p. 557, note 5. It should be borne in mind that a federal court grants a new trial only in accordance with the rules of the common law in such matters. Statutory regulations do not control in the matter. Where the evidence is conflicting, and the witnesses are all proven to be men of good character, a new trial will not be granted. Nonce v. Railroad Co., 33 Fed. Rep. 429-437. The jury are the judges of the weight to be
It is urged that the court improperly excluded the evidence of Durand and Thomas, to the effect that Durand took an assignment of the contract above referred to to Hall, when only about 6,000 cords of wood had been delivered thereunder, and cleared some ;?40,Q0Q on the same. It appeared from the evidence that the weather was uncertain in the neighborhood of Granite, where this wood was to be delivered, — some winters were more stormy than others; that, this was a material consideration in delivering wood. It was not offered to show whether at the time when Durand delivered this wood the weather was favorable or not. It was not proposed to show that Durand used the same appliances as Hall, or was a man of the same experience as Hall, or employed the same kind of men. These the court thought were material matters. It did not appear that plaintiff had a choice of letting- the contract to such a man as Durand. It is true that one man is much more efficient in filling the same contract than another. There is nothing in the evidence to warrant the court in saying that plaintiff had the knowledge and experience tp warrant him in coming to the conclusion that the contract for the hauling of that wood could be let for any less than the contract price. The evidence would warrant the conclusion that Hall made no money out of the contract. Under these circumstances I must maintain that it was proper to exclude the evidence of these two witnesses upon this point. And for the same reasons I think the evidence of what a subsequent contract for delivery of wood to defendant was entered into for by Durand was properly excluded. All of this evidence is based upon, some kind of a supposition, not supported by the evidence, that plaintiff knew that the contract with Hall was excessive as to price, and that he had the choice of letting a contract to such an efficient man as Durand proved to be. It entirely ignores the evidence in the case that this contract was let to Hall after bids had been advertised for and solicited, and that defendant vma fully apprised of the whole proceeding, and made no objection until some time after-wards. For the reasons assigned, the petition is denied.