Skone v. Barnard

BROWN, J. This is an appeal by plaintiff from an order granting defendant’s motion for a new trial. The action is one to recover a balance claimed to be due plaintiff upon 'a promissory note made and delivered to her by defendant on July 21, 1898. The defendant interposed the defense of payment, claiming at the trial that he had paid upon the note the sum of $245, which had not been credited’to him. The only question in issue before the court below, and the* only question passed upon by the jury, was whether that amount of money had been paid by defendant to be applied on the note. It was conceded by plaintiff that it was paid to her. She gave a *210 receipt therefor. But she insisted that it was so paid upon an indebtedness due her father for a crop of grain by him theretofore sold defendant. Defendant insisted and contended that it was paid upon this note, and had no connection with the crop transaction. The jury found against defendant, and returned a verdict for plaintiff. The court below made an order, on defendant’s motion, granting a new trial of the action unless plaintiff should remit from the verdict all in excess of $8.49, which defendant conceded to be due, such excess being the disputed $245. The plaintiff refused to comply with the order, and appealed therefrom. The order is based on the ground that the verdict was not justified by the evidence. The case comes clearly within the rule of Hicks v. Stone, 13 Minn. 398 (434), and subsequent cases. There is evidence to support the verdict, yet it is not so manifestly and palpably in plaintiff’s favor as to justify a reversal of the order. The evidence is conflicting, with circumstances corroborating both parties, and we are not so clear but that the stronger circumstances are with defendant. Order affirmed.