B. C. Thayer & Co. v. Williams

Gtll, J. This is a suit to enforce a mechanic’s lien. The plaintiffs claim to have furnished certain materials to the contractor, who erected a house on defendant Williams’ lot, and which said material went into the construction of the building. The last item of the account for which the lien was sought was charged to have been furnished at a date within four months of the time when the lien paper was filed. If this item was excluded, then there could be no mechanic’s lien, since the account was not, in that event, filed within four months after the account accrued, as the statute requires. The defendant Williams denied that the last item was furnished as charged in the account, and claimed that his house was completed before that date. [676] The case, as to the mechanic’s lien, turned on this single issue of fact. On a trial by jury, there was a verdict and judgment in favor of defendant Williams and therefore against the lien, and plaintiffs appealed. We are asked to reverse this judgment and send the case back for a new trial on two grounds. First, because the verdict was against the weight of the evidence, and, second, that the court should have granted a new trial because of newly discovered evidence. It is well settled in this state, that the appellate court will not set aside a judgment merely because, in its opinion, the verdict is opposed to the preponderance of the evidence. It is only in cases where the verdict is so outrageous as to force the conclusion that it was manifestly the result of passion or prejudice, that this court will interfere. We have read this record and find no such case as authorizes us in disturbing the judgment. As to the other point, we discover no error in the court’s ruling. The newly discovered evidence was only cumulative; and besides, there was no diligence shown. From aught that appears, if plaintiffs had exercised the least diligence, the evidence could have been procured in time for use at the first trial. It seems that this case had, at the time of the last trial, been pending more than four years. The statement of Williams while on the witness stand, that he had paid the contractor for the building, could work no harm to the plaintiffs, even if such testimony was incompetent. The jury could but understand that this had no bearing on the right of plaintiffs to enforce their mechanic’s lien. The instructions clearly advised them as to that and every feature of the controversy. We discover no error in the record and the judg-' ment will be affirmed. All concur.