80 Pa. Super. 512 | Pa. Super. Ct. | 1923
Opinion by
This was an action of assumpsit brought by the payee of a promissory not'e against the maker. Payment was resisted on the ground of fraud in the securing and performance of the contract, in settlement of which the note was given. After a trial by jury, a verdict was returned for the defendant. Before a judgment was entered thereon, the plaintiff filed motions for judgment non obstante veredicto and for a new trial. The trial judge dismissed the motion for judgment non obstante veredicto because no point for binding instructions had been submitted by the plaintiff. He could not do otherwise: Butler Borough School District v. Penn Township School District, 64 Pa. Superior Ct. 208. The rule for a new trial was made absolute and from that order the defendant brings this appeal. The sole question before us is whether there was any abuse of discretion in granting a new trial. After examining the whole record, we are convinced not only that there was no such abuse, but that the court would have been warranted in entering judgment notwithstanding t'he verdict, as he said he would have done, if a point for binding instructions had been filed. It would serve no useful purpose to review or cite the numerous cases in the Supreme Court and this court, in which it is held that where the court below awards a new Mai because in its judgment the ends of justice called for a submission of the case to a second jury, the appellate court will not reverse unless it clearly appears that the trial court abused its discretion by acting arbitrarily or under a plain mistake of law. A reference to Hess v. Gusdorff, 274 Pa. 123, and National Standard Clothes Co. v. Max Golden, 77 Pa. Superior Ct. 479, is sufficient.
The appeal is dismissed.
