Barr v. Guelph Patent Cask Co.

Moore, J. This case has been tried twice". Upon the first trial the circuit judge directed a verdict in favor of the defendant. An appeal was taken to this court, which ordered a new trial. Upon the second trial a verdict was rendered in favor of the plaintiff. The defendant brings the case here by writ of error. The opinion rendered in this court when the case was here before is found in 129 Mich. 278 (88 N. W. 640). A reference to that opinion will make it unnecessary to make a long statement of the case here. Upon the second trial, in addition to the testimony offered upon the part of the plaintiff, testimony was also introduced upon the part of the defendant, and it is claimed on the part of the defendant the record which we now have differs from the record when the case was presented here before. It is true that the trial judge, upon the objection of defendant’s attorneys, declined to admit some of the testimony on the part of the plaintiff which was received [323] upon the former trial. It is also true that testimony was offered on the part of the defendant, when none was offered before. This had the effect of presenting a weaker case on the part of the plaintiff, and a stronger case on the part of the defendant; but it did not wholly eliminate the questions of fact, and a careful. comparison of the two records does not indicate any material difference, except in degree, in relation to the question of fact which was involved; Many of the cases cited by counsel were cited in the former briefs, and some of the same arguments used then are used now. A careful reading of the present record satisfies us that now, as when the case was here before, the proofs disclose a case which should be submitted to a jury. It would not do any one any good to review the record in detail. See former opinion and Brown v. Railroad Co., 118 Mich. 205 (76 N. W. 407). The trial judge submitted the case to the jury under a very careful and impartial charge. The judgment is affirmed. Hooker, C. J., Carpenter and Montgomery, JJ., concurred. Grant, J., did not sit.