Levine v. Reynolds , 144 Me. 382 ( 1949 )

Per curiam.

This is an action on the case for money had and received by the defendant for the use of the plaintiff. The jury returned a verdict for the plaintiff in the sum of $351.00. It is now before the Law Court on defendant’s motion for a new trial, because he alleges it is against the law and the charge of the justice, and against the weight of the evidence. No exceptions were taken to the charge of the presiding justice and no special instructions were requested by defendant.

This is the second time that this case has been before this court, brought after the first trial upon defendant’s motion for a new trial and upon exceptions taken by the defendant to portions of the charge of the presiding justice and the refusal to give certain instructions requested by the defendant. The exceptions were sustained and the verdict set aside and a new trial granted, 143 Me. 16; 54 A. (2nd) 514. The sole issue in the second trial was on questions of fact.

The evidence was conflicting. With the evidence conflicting it was the province of the jury to decide those controversial questions, and this they have done. “Where the evidence is conflicting upon points vital to the result, the conclusion reached by the jury will not be reversed, unless the preponderance against the verdict is such as to amount to moral certainty that the jury erred.” Cayford v. Wilbur, 86 Me. 414. The burden of showing that the verdict is wrong is on the defendant. Harvey v. Donnell, 107 Me. 541.

F. Harold Dubord, Richard J. Dubord, for plaintiff. Harvey D. Eaton, for defendant.

This burden the defendant has failed to sustain.

Motion overruled.

Judgment affirmed.

Sitting: Sturgis, C. J., Thaxter, Murchie, Tompkins, Fellows, Merrill, JJ.