Fienup v. Gordon

168 N.W. 32, 40 S.D. 465, 1918 S.D. LEXIS 103

• Court: South Dakota Supreme Court
• Decided: June 11, 1918
• Docket: File No. 4336
• Status: Published

Opinions

WHITING, P. J.

The only question presented upon this appeal is the sufficiency of -the evidence to. sustain respondent’s counterclaim.. Appellant assigns as error the refusal of the court to. direct a verdict denying the 'counterclaim and the insufficiency of the evidence to support the verdict ¡which allowed such counterclaim.

[1] The instructions were clearly correct. It follows that, if the court correctly overruled: appellant’s motion for a directed verdict — in other word's, if there was sufficient evidence to go to the jury — such verdict must '.he sustained.

[2] Respondent contends that appellant failed, in his motion for directed'! Verdict, to sufficiently specify the particulars wherein he claimed the evidence to he insufficient. Among the specifications was one to the effect that respondent did not know of'the existence of the facts upon which bis claim rested. Such a specification was clearly insufficient, as respondent’s right of recovery idiid not depend upon his knowledge of the existence of the facts giving such, right of recovery, hut upon the actual existence of' such facts.

[3] There were other ispecifications that were sufficient, but there wias evidence which, if ¡believed by the jury, would warrant the jury in finding that appellant had failed in. his contract with respondent and would also warrant it in finding that, through such failure on, the part of appellant, respondent suffered the injury for which he was claiming damages. The trial court did not err in refusing to take such counterclaim from the jury, as .there wias sufficient evidence to require the submission of same to ¡the jury.

The judgment and order appealed from, are affirmed. '