Lowry v. Piper

Fisk, J. Action to recover a balance alleged to be due plaintiff from defendant as commission on tbe sale of land. Plaintiff was suc■cessful in the district court, and defendant appeals from an order overruling his motion for a new trial. The sole grounds of the motion were that the evidence is insufficient to justify the verdict and that such verdict is against law. Under a well-settled rule when applied to the facts disclosed by the record, we are not warranted in disturbing the order appealed from. There is a square conflict in the testimony over the vital and sole issue ■of fact as to the actual agreement between the parties governing the amount of such commission. The testimony is amply sufficient to sup [638] port plaintiff’s contention. This being true, it was not an abuse of discretion to make the order complained of. Appellant’s counsel recognize the general rule that this court, in cases like this, will not ordinarily review the testimony except to the extent of determining whether there'is evidence of a substantial character supporting the verdict; but they contend that certain documentary evidence in the form of a letter written by plaintiff to defendant touching the matter of such commission is controlling, and hence the above rule has no application. We do not thus view the matter. Such letter considered in the light of plaintiff’s oral testimony is not necessarily inconsistent with plaintiff’s version of the contract. On the contrary, it is susceptible of a construction harmonizing therewith. The jury, as well as the trial judge, evidently adopted such construction. Furthermore, the rule contended for by appellant’s counsel does not apply to appeals like the case at bar wherein the evidence consists both of oral and documentary proofs. 4 Cyc. Law & Proc. p. 564, and cases cited. Also 3 Cyc. Law & Proc. pp. 377, 378. Counsel for appellant cite Dickey v. Davis, 39 Cal. 569, but we discover nothing therein inconsistent with our views above expressed; nor does it support counsel’s contention herein. In disposing of this .appeal we are controlled by the rule announced in Magnusson v. Linwell, 9 N. D. 154, 8 N. W. 746; Flath v. Casselman, 10 N. D. 419, 87 N. W. 988, and other like decisions of this court too numerous to mention. As before stated, there is legal evidence of a substantial character supporting the verdict, and hence we deem it our clear duty to sustain the action of the trial court. The order denying defendant’s motion for a new trial is accordingly affirmed. All concur, except Morgan, Oh. J., not participating.