Franklin v. Fields & Chance

Russell, J. 1. A ground of a motion for a new trial complaining of the admission of documentary evidence can not he considered when'the evidence is not set forth in the ground, either literally or in substance, or attached thereto as an exhibit. 2. Where, in a suit upon a promissory note alleged to have been given in payment of commission for the sale of real estate, the defendant contended that he had not employed the plaintiff to sell the property, it was not error to permit the plaintiff to testify that the defendant had listed the property with him, to be sold upon commission, over the objection that it did not appear whether the contract was oral or written, and that the admission of the evidence permitted an inquiry into the consideration of the note sued on. 3. The evidence was directly conflicting upon the issues made by the pleadings, and a verdict for either party would have been authorized. Consequently the discretion of the trial court in overruling the motion for a new trial will not be controlled. .Judgment affirmed.