Merriman v. Ames

Cornell, J. If this case had been tried by a jury, and a verdict rendered against the defendants, it could not be sustained upon the evidence before us,.though the benefit of every reasonable inference deducible therefrom should be given to the plaintiffs. Admitting the existence of a contract, between the decedent and the plaintiffs in respect to the wood, none of its terms or conditions are shown, nor can they be reasonably inferred from anything contained in the evidence. For a total want of evidence upon this material point, the dismissal of the action was right, and it is, there 385 fore, needless to inquire whether, in determining a motion for the dismissal of an action for want of sufficient evidence, the same rule obtains, whether the issues of fact are being tried by a jury, or by the court without a jury. The refusal to allow the witness Butler to be recalled, for the purpose of proving an alleged admission to him by the decedent, “that he had.made the contract for the wood with the plaintiffs, at the price stated,” was not error. The witness had already been fully examined upon that subject, and had testified “that he knew nothing further than.what he had already stated with regard to any contract between the parties concerning the wood.” No oversight of counsel, nor misrecollection or forgetfulness of witness, was suggested as a reason for recalling him. The application was addressed solely to the discretion of the court, and its refusal, under the circumstances, was clearly not an abuse of discretion Order affirmed