Bank of Commerce of West Superior v. Ross

PiNNey, J. Tbe case was submitted to tbe jury, as tbe record shows, upon a charge quite favorable to tbe plaintiff,, and it is evident, upon a perusal of tbe testimony, that, although tbe burden of proof was on tbe defendants, there was sufficient evidence to go to the. jury to support tbe de-. fense and to sustain tbe verdict. There was evidence upon both sides of tbe question, and it was clearly a question for the jury to say, in arriving at a verdict, to what weight the evidence was entitled. Under such circumstances it was for tbe circuit court to say whether tbe verdict was so clearly against tbe preponderance of tbe evidence that tbe ends of justice required a new trial. This court is powerless to-grant any relief against a verdict upon such ground. It can interfere only when there is an entire want of competent testimony on some vital point essential to sustain tbe verdict, so that the question whether it shall stand or not becomes, sub [324] stantially a question of law. The question whether the ver- • diet answers the substantial ends of justice, there being evidence, though not a preponderance of evidence, to sustain it, is entirely and finally for the determination of the trial ■court,-and its decision cannot be re-examined in this court. The verdict establishes the fact that the plaintiff owned -and held the note of Lagro as a subsisting obligation against Mm when the defendants Foss and Walseth guarantied its ¡payment.- Their guaranty was, therefore, an agreement to .answer for the debt or default of Lagro, and this required some new consideration. Osborne v. Farmers’ L. & T. Co. 16 Wis. 36. It was not claimed that there was any such ■consideration for the guaranty; indeed, the undisputed evidence shows that they were gratuitous guarantors, and the guaranty, being without consideration, was void. R. S. sec. .2307, subd. 2. It follows that the judgment of the circuit court is correct. By the Oov/rt.— The judgment of the circuit court is affirmed. Maeshall, L, took no part.