Eckstrand v. Johnson

Christianson, J. Plaintiff brought this action to recover for certain work and labor performed by him for the defendant during the year 1915. In his complaint, plaintiff alleges that he performed such work and labor “for the defendant at the agreed price and actual value of $291.05,” and that there remains due, after allowing credit for payments made, the sum of $205.80, with interest. The defendant in his answer admits that he hired the plaintiff and that plaintiff performed certain services, but “specifically denies that there was any agreement as to the compensation which defendant was to pay said plaintiff for the work, labor, and services which he performed while in defendant’s employ.” And defendant alleges that the services performed were of the reasonable value of $176.16, and no more, and that defendant has paid the plaintiff in the aggregate the sum of $115.15, and that consequently he is indebted to the plaintiff in the sum of $61.01, and no more. Upon the trial, the plaintiff testified that he performed the services for the defendant under a specific agreement whereby the defend [296] ant agreed to pay certain amounts for the services to be performed. The defendant, on the other hand, testified that he made no agreement as to the compensation to be paid. The defendant called one Eoss, who claims to have been present when the defendant hired the plaintiff, and Eoss testified that nothing was said at that time with respect to the compensation to be paid the plaintiff for his services. The defendant also called one Matson, who testified that the plaintiff had told him that he did not know how much he was to receive for his services. The plaintiff denied such conversation. The only question contested upon the trial was whether there was an agreement between the plaintiff and defendant as to- the compensation to be paid to the plaintiff for his services. The evidence related to this question, and neither party offered any evidence as to the reasonable value of the services. The case was tried to the court, without a jury. The court made findings of fact in favor of the plaintiff to the effect that the defendant had promised to pay the plaintiff $291.05 for the services performed, and that defendant had made payments aggregating $95.15, leaving a balance due the plaintiff of $195.-90. Judgment was entered in plaintiff’s favor for the sum found due. After judgment, the defendant moved for a new trial on the ground of newly discovered evidence. The newly discovered evidence which defendant proposes to adduce upon a retrial of the action is that of one Eoss and one Ostlund. Eoss makes affidavit to the effect that three or four weeks after the work involved in this action had been done, he had a conversation with the plaintiff, Eckstrand, and that in such conversation the plaintiff stated that he had no contract as to the amount he was to receive for the work which he had performed for the plaintiff, and asked Eoss what he thought the defendant would be willing to pay therefor. The affidavit of Ostlund is to the effect that he had a conversation with the plaintiff after some of the work involved in this action had been performed, and that in such conversation the plaintiff asked what he (Ostlund) thought such work was worth and how much he thought the defendant, Johnson, “would stand thereforthat he (plaintiff) had no agreement with the defendant as to how much ho was to receive for doing such work, but that he was going to charge the defendant $5 per day for the time he worked as a stone mason in laying the foundation under a certain [297] hotel building, for the reason that the defendant had discharged the plaintiff from his employ. There is also an affidavit from the defendant to the effect that he had no knowledge of such proposed new evidence at the time of the trial of the action. It will be noted that the witness Boss testified upon the trial of the action. He then testified that he was present when the defendant hired the plaintiff to perform the work involved in this action, and that there was no agreement made as to the wages to be paid by the defendant to the plaintiff for the work to be performed. Manifestly, the proposed additional testimony of Boss with respect to the subsequent conversation had with the plaintiff would add little, if any, force to his former testimony. The sole question presented for determination on this appeal is whether the court erred in denying defendant’s motion for a new trial. It is elementary that a motion for a new trial on the ground of newly discovered evidence is addressed to the sound judicial discretion of the trial court. “The rules applicable to new trials on discretionary grounds, and the respective functions of trial and appellate courts on such motions have been so fully discussed by this court in several recent decisions that little [if anything] remains to be said in regard thereto. (See Aylmer v. Adams, 30 N. D. 514, 153 N. W. 419; McGregor v. Great Northern R. Co. 31 N. D. 471, 154 N. W. 261, Ann. Cas. 1917E, 141; State v. Cray, 31 N. D. 67, 153 N. W. 425; Blackorby v. Ginther, 34 N. D. 248, 153 N. W. 354; First International Bank v. Davidson, 36 N. D. 1, 161 N. W. 281; Reid v. Ehr, 36 N. D. 552, 162 N. W. 903; Wagoner v. Bodal, 37 N. D. 594, 164 N. W. 147.)” Keystone Grain Co. v. Johnson, 38 N. D. 562, 165 N. W. 977. Whether a new trial ought to be granted is primarily a question for the trial court. The function of this court on appeal is merely to review the ruling of the trial court on the motion, and such review is limited to a determination of whether the trial court abused its discretion and effected an injustice by denying a new trial. The discretion vested in the trial court should always be exercised in the interest of justice. The presumption is that it was so exercised. Even if all the newly discovered evidence had been offered and received at the trial, the findings of the trial court would still have substantial sup [298] port in the evidence. And evidently the trial court, after considering’ the proposed newly discovered evidence and. weighing the same with the evidence adduced upon the trial, was of the opinion that its former findings were correct and that substantial justice had been accomplished at the former trial. "We are entirely agreed that the trial court in no manner abused its discretion in denying a new trial in this case. The order appealed from must be affirmed. It is so ordered.