Jones & Co. v. Tucker , 132 Ala. 305 ( 1901 )

SHARPE, J.

— So far as the motion for a new trial questions the propriety of the verdict the rule applicable on this appeal is that laid down in Cobb v. Malone, 92 Ala. 330, where it was in effect declared that where there is not a palpable failure of evidence to support the finding of the jury the action of the trial court in upholding the verdict will not be deemed erroneous. Here there is no such failure of evidence. On the main question of whether the contract sued on was in fact-made there ivas a mere conflict of evidence such as was proper for solution by the jury alone.

No separate question as to the quantum of damages appears to have been raised on the main trial, and we would hesitate to affirm that the grounds assigned for a new trial are sufficiently definite to raise the question in that proceeding. — Bee Winter v. Judkins, 106 Ala. 259. But apart from that consideration, the evidence does not clearly justify the contention here made that the plaintiff could by reasonable efforts have reduced his damages by earnings in work in the same neighborhood similar to that provided for in the contract alleged to have been made and broken.

The evidence, claimed to have been first discovered after the trial is at most of an inconclusive character consisting wholly of admissions made by plaintiff to third persons such as the rules of evidence declare should be received and weighed with great caution.

Allowing scope for that reasonable discretion vdiich the trial court may lawfully exercise in acting on motions for new trials, it is not apparent that error was committed in overruling the motion in question.

Judgment affirmed.