209 N.W. 958 | S.D. | 1926
This is an action to recover on a promissory note.
Plaintiff sold to defendant an automobile, and, in payment therefor, received from defendant an old car, valued at $250 and defendant’s note for $1,300, which is the note being sued upon. Defendant answered the complaint, admitting the execution and delivery of the note, but alleging misrepresentation and breach of warranty on the part of plaintiff, and by way of counterclaim alleged damages in the amount of $1,550. The case was tried to> a jury. •
The jury was instructed as follows:
“* * * Two forms of verdict will be given you, one in favor of plaintiff and one in favor' of defendant. Select the one that*302 meets with your conclusion; if for the plaintiff, you should1 insert therein the amount you find in plaintiff’s favor.”
The verdict of the jury was:
“We, the jury, * * * find for tire plaintiff upon all of the issues, and assess his damages at the sum of $200, and a-’low the plaintiff both cars, and the plaintiff is to cancel the note for t.ne sum of $1,300 held by plaintiff at this time.”
No judgment was entered upon tire verdict, and plaintiff firved notice of intention to move for a new trial upon the fol-. lowing grounds:
“(1) Insufficiency of the evidence to justify the verdict.
“(2) That verdict is against law, and contrary to evidence and the instructions of the court.
“(3) Errors in law occurring at the trial and excepted to by plaintiff.”
The trial court granted plaintiff’s motion for new trial for the following ieasons: (1) For the reasons set forth in the plaintiff's intention to move for a new trial. (2) For the reason that the verdict is not responsive to the issues raised by the pleadings, and rests upon both an affirmation and a rescission of the contract for the sale of the car in question in this case, and for which car defendant gave plaintiff the note in question in this action. (3) For the leason that the verdict is contrary to the instructions and to1 the lav/, and would not in the opinion of the court support a judgment. <4) For the reason that, in the opinion of the court, under the circumstances in.this action, all things being considered, the ends of justice will be best conserved by granting a new trial. (5) That the verdict in the form rendered is not supported by the evidence, and the evidence is insufficient to1 justify the verdict.
This court holds, in the Security State Bank v. Bank of Centerville 46 S. D. 440, 193 N. W. 670 (syllabus 1) :
“Application for new trial on ground of insufficiency of the evidence to support the verdict is addressed to the sound" discretion of the trial court, and its discretion will only be reviewed for manifest abuse of discretion.”
And (syllabus 2) :
*303 “'A clearer case is required to authorize a reversal of an order granting a motion for a new trial than is required to reverse an order overruling such motion.”
And in Clarke v. Pelter, 46 S. D. 585, 195 N. W. 442:
“* * * Upon considering the presumption that a new ¡rial will result in ¡ustice to both parties, while a reversal of the order granting a new trial might not, * * * we cannot say that the trial court abused the discretion committed to it.”
The ordei granting a new trial is affirmed.
