Murrill v. Van Vleet

WOOD, P. J.,

pro

tem.

This is an action to recover an alleged balance of $5,190.55 upon a mutual, open, and current account for pasturage furnished by plaintiff between October 1, 1915, and April 1, 1918. The credit allowed to defendant is $200.45 for moneys paid by him for taxes upon land, which was in the possession of plaintiff under a contract to purchase the same from defendant.

There was a verdict for plaintiff for $2,716.92. Upon a motion for a new trial, the court made a conditional order granting it, unless within ten days plaintiff should remit all of the judgment in excess of $300. He declined to accept the reduction and has appealed from the order.

The principal point raised here and argued by the parties is as to the sufficiency of the evidence to establish a mutual account. It is contended by appellant that if there is any evidence to uphold the findings of the jury, then the order must be reversed, because, as he claims, for certain reasons not necessary here to mention, the order cannot be construed under section 657 of the Code of Civil Procedure as amended in 1919 (Stats. 1919, p. 141), as having been granted upon any other ground than that of a legal insufficiency of the evidence to show a mutual account. The appellant relies upon no evidence other than his own, to

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support the verdict, which is as follows: “Q. Now, tell what, if anything, was said about pasturing cattle. A. Well, I says, ‘I am not able to pay my taxes, and I have to pay you one-half of the money out of everything I make on the place, and I am not able to pay the taxes,’ I said, ‘Will you help me to pay the taxes?’ He says, ‘Yes, we can arrange it.’ I says, ‘How?’ He says, ‘I have a lot of stock, and I take in a lot of stock from the neighbors I will put in the pasture at $2.50 a head a month, and,’ he says, ‘I will pasture it.’ And I says, ‘You will pay my taxes, and take your seventy-five or the one hundred dollars out of it, and then you credit me with the remainder.’ He says, ‘Yes, I will do that.’ He says, ‘Well, we will take Benge there for witness.’ Benge was standing there at the gate. And I says, ‘All right.’ Benge and his wife both were standing there. And he says, ‘That is all right,’ and we went on, and that was about all the pasture matter at that time.”