Blakeley v. J. Neils Lumber Co.

Per Curiam. Action to recover $1,272.36 and interest, being a balance claimed by the plaintiff to be due him on a contract for driving logs. At the close of the evidence the plaintiff moved for a directed verdict in his favor in the amount claimed. The defendant moved for a directed verdict in its favor. Both motions were denied, and the jury returned a verdict for the plaintiff for $746.30. Bach party made a motion for judgment or a new trial. The motion of each was denied, and each appealed from the order. The plaintiff in this court made a motion to dismiss the defendant’s appeal for its failure to comply with the rule as to service of its brief. The motion must be granted. The plaintiff’s appeal presents the question whether he is entitled to judgment absolute for $1,272.36 and interest, or a new trial. Upon a consideration of the record, we are of the opinion that, within the rule of Cruikshank v. St. Paul F. & M. Ins. Co., 75 Minn. 266, 77 N. W. 958, the plaintiff is not entitled to judgment absolute, but that upon the record and concessions of defendant’s counsel on the argument he is entitled to a new trial. Ordered, that the defendant’s appeal be and it is hereby dismissed, and further, that a new trial be and it is granted upon plaintiff’s appeal.