Pound v. Roan

LyoN, J. On the vital question in the case, whether Ma-honey was authorized by the defendant Martin to sell the team to Allen, the testimony is conflicting. It is .quite unnecessary to set out the testimony, or even to express an opinion as to its relative weight. It is sufficient to say that, after a careful examination thereof, we find ourselves unable to hold that the learned circuit judge abused the discretion which the law confers up„on him in such cases, when he granted a new trial of the action. But we think the new trial should only have been granted on the terms that the plaintiffs pay the costs of the former trial. Such seems to be the rule where the verdict is set aside because it is against the evidence, unless the verdict is a perverse one. Emmons v. Sheldon, 26 Wis., 648; 1 G. & W. on New Trials, 601, and cases cited; Baxter v. Payne, 1 Pin. 501; Carroll v. More, 30 Wis., 574. An honest verdict, [131] although unsupported by a preponderance of evidence, is not a jperverse verdict within the rule. There is nothing in the record before us to justify us in holding that this verdict does not express the honest opinions of the jury, or that it was influenced by prejudice or passion. By the Court. — The order is reversed, and the cause remanded with directions to the circuit court to order a new trial on the terms that the plaintiffs pay the taxable costs of the former trial. Byan, G. J., took no part.