183 N.W. 132 | S.D. | 1921
Dissenting Opinion
(dissenting.) It is well settled in this state that, where the evidence is -conflicting so that from it different persons might reasonably draw different conclusions, there is vested in the trial court a discretion as to granting a new trial, which discretion will be fully recognized on appeal. Gamble v. Keyes, 39 S. D. 592, 166 N. W. 134. However, in this case there is to be found no conflict of evidence — not a single particular wherein there is a dispute — and respondent has not suggested that the ruling of the trial c'ourt should be sustained on the ground that such ruling was an exercise of discretion based on
The contract between these parties was evidenced by correspondence had between them; and respondent in his brief very frankly says:
“The sole issue on this appeal is whether the defendant could, without liability to the plaintiff, sell his land through another agent, within the period of time stated in plaintiff’s contract, in which the plaintiff had the fight to make sale of defendant’s land.”
Appellant contends that the contract did not give respondent the exclusive right to sell, and that he rightfully refuses to pay the commission or damages prayed for because, prior to the time when respondent advised him of the sale he claims to have made, another of his agents had sold this land. One of my colleagues suggests that the evidence is insufficient to prove that such a sale had been made prior to the time respondent -made and reported his sale. If my coleagues are satisfied that such is the fact, they should base their decision thereon, and not on the ground of a conflict in evidence where no conflict exists. I would, however, suggest that the burden of proof rests upon respondent. He pleaded that he found a purchaser ready, able, and willing to buy this land. There is no evidence that such “purchaser” was able to meet the cash payment which, under his contract with respondent, had to be made upon delivery of deed. Because of this failure of proof, the direction of verdict should have stood; but in any case, if a new trial is to be granted, this court should now determine that which respondent contends is the sole issue — ■ whether his contract with appellant gave him the exclusive sale of this land.
Lead Opinion
Action to recover commissions on alleged sale of real estate. Verdict for defendant. From an order granting a new trial the defendant appeals.
The motion for new trial, among other things, was based on the insufficiency of the evidence to sustain the verdict. We are of the view that the evidence to sustain the verdict was of such a conflicting nature that different persons might reasonably have drawn different conclusions therefrom. Under such circumstances the order granling a new trial should not be reversed.
Finding no error in (he record, the order appealed from is affirmed.
