Perry v. Noonan Loan Co.

HARRISON, P. J.

This action was brought to recover the value of services rendered by the plaintiff to the defendant during the two years prior to the commencement of the action, the amount claimed being six thousand dollars. The -cause was tried by a jury, and a verdict rendered in favor of

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the plaintiff for $1,520. Thereafter the court granted the defendant’s motion for a new trial “on the ground of the insufficiency of the evidence to justify the verdict rendered herein. ’ ’ From this order the plaintiff has appealed. Being an action of

quantum meruit,

the amount to be recovered depended upon the testimony of witnesses as to the value of the services, and on this point there was a marked conflict in the testimony. In his complaint the plaintiff alleged their value to be two hundred and fifty dollars per month, and at the trial there was testimony on his behalf placing their value at different sums from two hundred and fifty to three hundred dollars per month, while on the part of the defendant witnesses placed their value at from sixty-five to one hundred and fifty dollars per month. There was also testimony tending to show that the plaintiff had been paid a large portion, if not all, of the amount that he was entitled to under testimony on behalf of the defendant. The court was therefore fully authorized to grant a new trial.

The appellant urges that the court erred in granting the motion for the reason that the statement of the case, upon which the motion was made, was not presented to the plaintiff within the time allowed by law therefor; and that therefore it was improperly settled by the judge and should not have been considered by him. The following are the facts relied upon in support of this position, viz.:—

The verdict of the jury was rendered December 9, 1901. The defendant gave notice of its intention to move for a new trial December 19, 1901. At the close of the statement to be settled is the following:—

“The defendant proposes the foregoing as his statement on motion for a new trial.

“Dated March 25, 1902.