Ten Cate v. Sharp

Opinion of the court by McAtee, J.: It appeared in the testimony produced in the case, from the deposition of J. P. Valentine, that, upon making the contract with Ten Gate for the sale of *304 the hogs, he “informed Ten Cate that there was a ■.stranger in the town [of Perry] called Sharp, who had money to invest, and had agreed to buy his [Ten Cate’s] note. I also told Ten Cate that Sharp was a stranger to me, and I at no time represented to Ten Cate that Sharp had any interest whatever in the hogs, but I did tell' Ten Cate that all that Sharp, had to do with the matter was to get the interest on his money,” — and that “at no time prior to, or at the time of, or since the sale, have Sharp and I been partners in anything whatever, nor did I at •any time make any representation to Ten Cate that a partnership existed between me and Sharp.” And the jury ■expressly found, in their special finding of facts,that “the $474 was paid to J. P. Valentine in full for the note given by Ten Cate to Sharp,” which finding was in response to the question, “Did the defendant, Sharp, pay to Valentine, for the benefit of the plaintiff, Ten Cate, the sum ■of $474, in consideration of the giving of said note?” Upon this evidence^ and the special fiudings of fact by the jury, the court may well have had reason to doubt whether it was correct in refusing to instruct the jury that Sharp ought not to be bound by a warranty of the hogs of which he had no knowledge, and when the jury had expressly found that the money was paid to Valentine in full for the note given by Ten Cate to Sharp. The ■evidence in the case was contradictory as to whether any warranty had been given at all’ or not; the testimony upon this point joeing, as between Valentine and Ten Cate, flatly contradictory. The law is well settled that where a verdict of the jury is founded upon the testimony of a witness directly contradicting another witness., and the trial court sets the verdict aside, the supreme court will not reverse the de *305 cisión or order of the trial court granting a new trial, and that when a new trial is granted the supreme court will only interfere when the trial court mistakes or misapplies some settled principle of law, or manifestly abuses its discretion, and that new trials are favored, in: stead of being disfavored, where any question can arise as to the correctness of the verdict. (McCreary v. Hart, 39 Kan. 218, 17 Pac. 839; Field v. Kinnear, 5 Kan. 138; Owen v. Owen, 9 Kan. 96; Atyeo v. Kelsey, 13 Kan. 216; City of Sedan v. Church, 29 Kan. 192; Brown v. Railroad Co., 29 Kan. 189; Railroad Co. v. Diehl, 33 Kan. 426, 6 Pac. 566.) And it has been further held that where a motion is. made by the plaintiff for a new tidal upon the grounds that the verdict is contrary toi the law and thq evidence, and the court errs in.refusing to give certain instructions ■to the jury, and the court sustains the motion and grants a new trial, the rule of the court may be correct, although the preponderance of the evidence may be in favor of the defendant, and that trial courts are invested with a very large and extended discretion in the granting of new trials, and new trials ought to be granted whenever, in the opinion of the trial court, the party asking for a new trial has not in all probability had a reasonably fair trial, or in all probability obtained or received substantial justice, and although it might be difficult for the trial court or the parties to state the ground for such new trial upon paper so plainly that the supreme court could understand them as well as th>e trial court, and the parties themselves understood them, and that the supreme court will not reverse the ruling of the trial court granting a new trial, unless the supreme court can see, beyond all *306 reasonable doubt, that the trial court has manifestly and materially erred with respect to some pure, simple, and unmixed question of law, and that except for such error the ruling of the trial court would not have been made as it was made, and that it ought not to have been so made, and that the supreme court will very seldom and very reluctantly reverse the decision or order „of the trial court which grants a new trial. It was said in City of Sedan v. Church, 29 Kan. 190, that it would be best for the other party, if he supposes he has a reasonably good case, to rely upon the new trial, and the verdict or finding to be obtained at the new trial, in preference to immediately taking the case to the supreme court; for that, where a new trial is granted, both parties are afforded another opportunity to have a fair and impartial trial upon the merits, but, where the new trial is refused, the parties are deprived of such opportunity, and no opportunity is given to either of the parties or to the court for the correction of any errors or mistakes which may have intervened during the original trial, and by such refusal irrevocable injustice may be done to the party asking for the new trial. (City of Sedan v. Church, 29 Kan. 191.) The order of the court below granting a new trial will be affirmed. All of the Justices concurring.