Reinholtz v. Carlson

Beach, J.

The trial court granted the motion to set aside the verdict upon the ground that the jury failed to follow the instructions of the court with reference to the law; and some of the reasons of appeal are based on the contents of the memorandum granting the motion to set aside the verdict. These assignments of error cannot be considered. In order to review rulings of the court made in the course of the trial a finding is necessary, and none has been made or requested.

The only assignments of error on this appeal which we can consider are those based upon the granting by the trial court of the motion to set the verdict aside, and that depends upon whether or not there was evidence from which the jury might reasonably have found this verdict. Upon the evidence before the jury the verdict against Casey must stand.

It appears, however, from the testimony, that there is not the slightest justification for a verdict against Carlson. The plaintiff offered no testimony in support of the allegation that Casey was acting as agent for Carlson. Casey was quite willing to pose as Carlson’s agent, and admitted that allegation of the complaint. Carlson denied it. Casey finally testified that his contract with Carlson was that of a purchaser and not an agent. It is in writing and in evidence. In form it is an agreement by Carlson to convey the property to Casey, or order, within fifteen days from date, for $5,900, $2,500 in cash, and $3,400 by assumption of outstanding mortgages by the purchaser. Casey, by Exhibit A, agreed to resell the property to the plaintiff for $6,500 on the terms therein stated. There is no evidence that Carlson knew the terms of Exhibit A before the closing date, and he then stood on his contract with Casey and refused to accept a mortgage in lieu of cash. As between Carlson and Casey, the matter was finally arranged by Casey agreeing to take the $1,600 demand mortgage off Carlson’s hands for $1,000 cash, which was done. Nobody testified that Carlson made any representations to the plaintiff. The case against him rests wholly on the fact that he was present when the representations were made; and the assumption is that he heard them and knew that they were false. There is no direct evidence that he did, and as Carlson was under no legal duty to protect the plaintiff, no presumption arises, that he heard and understood. His contract was with Casey, and his mind was occupied with the effort to protect himself against Casey’s attempt to substitute a purchase money mortgage for cash.

There is error in part, and the cause is remanded with direction to enter judgment on the verdict against the defendant Casey.

In this opinion the other judges concurred.