Sloteman v. Thomas & Wentworth Manufacturing Co.

Lyon, J. 1. The question of the ownership of the wagon was litigated upon the trial, and the testimony bearing upon it was somewhat conflicting; yet it tended to show that the wagon belonged to the plaintiff. The jury have found that it belonged to her, and we cannot disturb that finding. 2. It is claimed that the damages allowed for injuries to the wagon were excessive. We are inclined to think that the allowance thereof is a little too large, but we have not examined this question carefully, because we are of the opinion that it cannot properly be raised on this appeal. Sec. 2818, E. S., authorizes a motion for a new trial on the minutes of the trial judge, “upon exceptions; or because the verdict is contrary to law, or contrary to evidence, or for excessive or inadequate damages.” The motion in this case (which was upon the minutes) specified, as grounds therefor, that the verdict was contrary to evidence and contrary to law, but did not claim that the damages were excessive. We think that ground for a new trial should have been specifically assigned in the motion, and that it is not sufficient merely to allege that the verdict is contrary to the evidence. The latter allegation goes to the wdiole verdict, while the objection that the damages were excessive goes only to a portion thereof. 3. The wagon in question had formerly belonged to Otto Sloteman, the husband of the plaintiff, and the defendant had no notice, before using it, that he had sold it to his wife. It is now claimed that for this reason the defendant should be allowed to set off against the plaintiff’s claim its [501] demand against her husband. There might be some force in the position did it appear that the defendant acted on the belief that the wagon still belonged to the husband. But it does not so appear. There is nothing in the case to show that the ownership of the wagon was of any impor- ■ tance to the defendant, or that it would have acted differently in any respect had it known that the plaintiff was the owner. The court properly rejected the proposed setoff. The foregoing views dispose of all the alleged errors adversely to the defendant. By the Court.— The judgment of the county court is affirmed.