In this case the complaint contains four causes of action. The jury found a verdict for the plaintiff, $3,977.12, and the defendant appeals from the judgment and from an order denying a new trial.
The first cause of action is $800, and interest from October 1, 1909, for money had and received from J. IT. Shepard for the use of the plaintiff. To this the answer is a general denial. The jury specifically allowed the claim. The plaintiff testified that Shepard was owing him $800 and paid it to defendant for the use of the plaintiff in October, 1909. On this it.cannot be claimed that the verdict is not sustained by the evidence, but on this item defendant moves for a new trial on the affidavit of two persons. The trial court denied the motion, holding that there was no reasonable excuse for their absence at the trial, and in this we fail to see any abuse of discretion. On this matter the testimony of Lahart was given at the opening of the trial on the first day, and the trial lasted about three days.
The second cause of action is for lumber sold and delivered, $330; the third cause is for grain, $1,147.90; the fourth cause is for grain, $451. The answer to each is a denial, and to the third and fourth causes of action, that is, for the grain sold and delivered, there is a plea of the Statute of Limitations. On each cause of action and each issue there was a sharp conflict of evidence, and it is rather hard to say on which side the evidence preponderates. It is certain there is ample evidence to sustain the verdict.
The third and fourth causes of action were for the sale of grain which was left over in two grain elevators which the plaintiff sold to the defendant. The sale was made in Jime or July. The jury found it was made in July, and found specifically that the plaintiff was to have credit *161for the grain, in the summer of 1908, and the evidence of the testimony of Lahart is very positive that he did not have any credit for the grain, while on the part of the defendant there is testimony that he did have credit. The jury found specifically that the plaintiff was to have credit for the grain in July, 1908. The action was commenced in March, 1914, and they found that defendant took the lumber before November 1, 1908.
The charge of the court to the jury is exceedingly fair and unexceptional, and the case appears to have been fairly tried, and the questions of fact were fairly submitted to the jury. There is nothing to be gained-by a discussion of the testimony.
The order and judgment of the District Court is affirmed.
Grace, J. I concur in the result.