Roesner v. C. E. Dellenbarger Co.

<p>Abstract of the Decision.</p> <p>1. Evidence, § 476*—when number of witnesses may be considered in weighing evidence. The number of witnesses testifying on each side in the trial of an action is a proper but not an absolutely controlling element to be considered by the jury in weighing the evidence.</p> <p>2. Witnesses, §253*—province of jury as to credibility of witnesses. It is the province of the jury to determine the credibility of witnesses and the weight to be given their testimony.</p> <p>3. Appeal and error, § 1410*—when verdict not disturbed as against weight of evidence. Unless the verdict of a jury is clearly and manifestly against the weight of the evidence, such verdict will not be disturbed on review.</p> <p>4. New trial, § 97*—necessity of affidavits to support motion for new trial on ground of newly-discovered evidence. A motion for a new trial on the ground of newly-discovered evidence must be supported by the affidavits of the witnesses by whom it is proposed to prove the matters relied upon, or an excuse shown for not producing such affidavits.</p> <p>5. New trial, § 102*—when affidavit supporting motion for new trial on ground of newly-discovered evidence insufficient. On a motion for a new trial on the ground of newly-discovered evidence, an affidavit that the witness by whom the party seeking the new trial proposed to prove the matters relied upon as newly-discovered evidence is beyond the reach of the affiant, and further alleging that affiant made “earnest efforts” to secure an affidavit from such witness, is insufficient in that such affidavit does not state specific facts sufficient to enable the court to determine what efforts were made by affiant to secure such affidavit before the witness’ departure.</p> <p>6. New trial, § 102*—when affidavit supporting motion for new trial on ground of newly-discovered evidence insufficient. On a motion for a new trial on the ground of newly-discovered evidence, an affidavit that prior to and during the trial affiant made “diligent efforts * * * to discover evidence” of the character relied on as newly-discovered evidence, is insufficient in that its allegations are mere conclusions of the affiant and give the court no information from which it can determine whether or not affiant was diligent.</p> <p>7. Trial, § 155*—when weight of evidence jury question. Where the evidence is conflicting, a question of fact for the jury is presented.</p> <p>8. Contracts, § 384*—sufficiency of evidence to sustain verdict. In an action to recover on a contract whereby defendant agreed to employ plaintiff at a stated rate of compensation for a named period, in which the defense was that the contract was somewhat modified with the assent of plaintiff, a verdict whereby the jury found that plaintiff never assented to such modification of the contract, held not manifestly against the weight of the evidence.</p>