22 S.D. 13 | S.D. | 1908
At the trial of this action to recover a small
.balance alleged to' be due plaintiff on account of" the sale and delivery of certain farm implements and repairs,'the jury returned a verdict in favor of the defendant on all the issues, and judgment was accordingly entered. While this appeal is from an order denying plaintiffs motion for a new trial, no assignment of error is predicated thereon, and the only question presented for consideration is the refusal of the court to direct a verdict in favor of plaintiff at the conclusion of all the evidence. While the ruling on the motion for a new trial is not reviewable without an assignment of error presenting the matter on appeal, the refusal to direct a vcidict is properly assigned and urged for a reversal, and it ma}’ be determined as a matter of law whether there was any evidence to be submitted to the jury. Jones Lumber & Mer. Co. v. Faris, 5 S. D. 348, 58 N. W. 813; Sioux Banking Co. v. Kendall, 6 S. D. 543, 62 N. W. 377; Carroll v. Nesbit, 9 S. D. 497, 70 N. W. 634.
The request for a directed verdict in the sum of $20.62 on an alleged claim of more than twice -that amount, which plaintiff testified was due and sought to recover suggests a partial failure
The jury being justified in its conclusion from all the evidence that plaintiff’s account was fully paid by the defendant before the commencement of the action, the motion to direct a verdict was very properly overruled, and the judgment of the trial court is affirmed.