On Petition for Rehearing. Appellant, in his motion for rehearing, asks the court to withdraw from the opinion the statement that the decision rendered is "without prejudice to the right of the defendant to press his motion for a new trial on the ground of the insufficiency of the evidence, if he desires to do so." The motion is based on two grounds — that the notice of entry judgment rendered on the verdict was given to the defendant "more than six months prior to the decision," and, that the trial court has already passed on the question of the sufficiency of the evidence adversely to the defendant.
Neither point is well taken. Within the time specified by statute the defendant made his motion in the alternative for judgment notwithstanding the verdict, or for a new trial and submitted it to the court.
There is evidence tending to show the contract to be an original agreement between the plaintiff and defendant and therefore not necessary to be in writing; and there is evidence tending to show it to be an agreement to answer for the debt of another.
The trial court granted a new trial on the theory he should have granted the motion for a directed verdict. By doing so the trial court held that not only was there no evidence to sustain the verdict, but also that there was no probability this lack of evidence could be supplied. To this extent only the court passed on the question of the sufficiency of the evidence, by holding there was no evidence whatever showing an original contract. Thus the court held it to be an "error in law occurring at the trial" when he overruled this motion for a directed verdict; being the ground for new trial set forth in subd. 7 of § 7660, Comp. Laws.
The record shows the judgment of the trial court was based largely upon an erroneous theory regarding the nature of the contract, a theory which is untenable. Thus a directed verdict should not have been granted, and it was not an "error in law occurring at the trial" to deny the motion. *Page 608
But the trial court, finding there is proper evidence, has not passed upon the question of its insufficiency to justify the verdict. He rejected the evidence because of its nature. There may be evidence sufficient to require submission to the jury, and yet under all the showing made, the court, in its discretion, may consider it insufficient to justify the verdict.
Finding there is proper evidence, the defendant may not care to press the motion for new trial on the ground of the insufficiency of the evidence, or if he does so the trial court, in its discretion, may say that such evidence being proper is amply sufficient, and thus rule on the ground stated in subdiv. 6 of said § 7660 — insufficiency of the evidence to justify the verdict — set forth in the alternative motion. The trial court has not yet exercised its discretion in this respect. The petition for rehearing is denied.
CHRISTIANSON, Ch. J., and BURKE, J., concur.