44 Cal. 139 | Cal. | 1872
The jury having returned a general verdict for the plaintiff, the defendant moved for a new trial, assigning as one of the grounds of the motion the insufficiency of the evidence to justify the verdict, and with appropriate specifications as to the particulars wherein the evidence was insufficient. The Court having granted the motion on this ground, the plaintiff appeals, and insists that the verdict ought not to have been disturbed. The Court below appears to have been satisfied from the evidence: First—That the check was drawn against a sufficient fund. Second—That it was presented for payment at the bank by the plaintiff almost immediately after it was delivered by the defendant, and payment was then and there tendered by the bank; but the plaintiff finally declined to accept the money, not with the intention to hold the defendant liable on the check or otherwise, but only as a matter of convenience to himself preferring to leave the money temporarily in the bank until he should call for it. Third—That by the transaction at the bank, and by the mutual consent of the plaintiff", the defendant, and the banker, the sum represented by the check was practically transferred from the credit of the defendant to that of the plaintiff", and thenceforth remained in the bank at his risk. Assuming these to have been the facts, the Court below was of opinion that the verdict ought to have been for the defendant, and a new trial was, therefore, awarded. There was certainly some evidence which tended to support the construction placed upon it by the Court below. But if we entertained a doubt whether the evidence on this point was sufficient to justify the interpretation placed upon it by the Court, we would not disturb the ruling of the District Court in granting or refusing a new trial on the question of the sufficiency or insufficiency of the evidence, except in case of a clear abuse of its discretion, and
Order affirmed.