Wadford v. Rhodes

Warner, Chief Justice.

This was an action brought by the plaintiff against the defendant to recover the value of a lot of cantaloupe melons. On the trial of the case, the jury found a verdict for the plaintiff. A motion was made for a new trial, on the ground that the verdict was contrary to the charge.of the Court, contrary to the weight of the evidence, and because the Court refused to allow the defendant to be recalled during the argument of the case to prove whose money the $100 00 was in the drawer, given in part payment for the melons, the defendant’s counsel stating that he thought he had proved that fact, but as it seemed he had not, the omission ,was inadvertent, and he desired then to be permitted to make the proof. The Court granted the new trial; whereupon the plaintiff excepted.

The main question in the case, was whether the plaintiff* sold the melons to the defendant on his own account or-as the agent of another party, and whether the name of the other party was disclosed to the plaintiff by the defendant at the time of the sale. On this point the evidence was conflicting. In view of the evidence disclosed in the record, and inasmuch as the Court refused to allow the defendant to be recalled to prove the fact inadvertently omitted, as before stated, we will not control the discretion of the Court below in granting the new trial in this case.

Let the judgment of the Court below be affirmed.