Reynolds v. Bondhus, 153 Minn. 239

Reynolds v. Bondhus

153 Minn. 239 | Minn. | 1922

Dibell, J.

Action to recover for plowing 46 acres of land at $1.50 per acre, a total of $69, tried de novo in the district court on appeal from the court of a justice of the peace. There was a verdict for that sum. The defendant’s motion for a new trial, one ground of which was the insufficiency of the evidence to sustain the verdict, was *240denied. Judgment was entered for the plaintiff and the defendant appeals.

In June, 1917, the plaintiff sold the defendant a farm then under lease to one Dilly. The sale was subject to the lease. By its terms Dilly was to plow back 32 acres. This he did. The plaintiff claims that Dilly plowed back 14 acres additional. The 32 acres and the 14 acres make the 46 acres for which recovery is sought. The plaintiff paid Dilly nothing for plowing the 32 acres. He claims he paid him $1.50 per acre for the 14 acres.

On September 21, 1917, the defendant wrote the plaintiff as follows:

“I spoke to you of plowing when I was there. You said you tho’t your renter would be willing to plow for $1.50 per acre. If he is tell him to go ahead and plow the same as you would want it done and I’ll settle with either you or him for it. Let me know if he does go ahead.”

Upon the issue of a contract between the plaintiff and the defendant for plowing the 32 acres we see no question for the jury. Dilly performed his agreement. The plaintiff did nothing. The letter did not contemplate that the defendant should pay the plaintiff for the 32 acres which Dilly plowed under his lease. There was no contract to that effect. While Dilly does not claim in his testimony that he plowed more than the 32 acres, and though he says that he got no pay at all, there is evidence to sustain a finding that he plowed 14 acres additional at the request o-f the plaintiff, acting for the defendant, and that the plaintiff paid for it. The verdict is sustained in the amount of $21 for the plowing of the 14 acres.

The appeal is from the judgment. The plaintiff urges that the question of the sufficiency of the evidence is not reviewable. In this he is mistaken. Where a motion is made for a new trial upon the ground of the insufficiency of the evidence, as in this case, and denied, the question of its sufficiency is reviewable on appeal. 1 and 2 Dunnell, Minn. Dig. §§ 388, 7073.

The judgment is reversed unless the plaintiff within ten days after the going down of the mandate consents to a reduction to *241$21, with interest from the date of the verdict, with such costs and disbursements to be taxed for or against the plaintiff as are proper in a verdict of that amount on an appeal such as this from a justice’s court; and upon such consent the judgment will stand affirmed in the amount stated. No statutory costs are allowed in this court.

Affirmed on condition.