Opinion
Decided May 2, 1922.
CASE, for deceit in the sale of real estate. Trial by jury and verdict for the plaintiff. Thereafter the defendant moved to set the same aside as contrary to the law and contrary to the weight of the evidence. The motion was denied subject to exception. Transferred by Marble, J., from the September term, 1921, of the superior court.
Albert Terrien (by brief and orally), for the plaintiff.
Ivory C. Eaton and Markar G. Markarian (Mr. Markarian orally), for the defendant.
The defendant's contention that there was no evidence to sustain the verdict comes too late after the submission of the case to the jury without objection. Farnham v. Anderson, 74 N.H. 405. The defendant, however, lost nothing by failure to object to the submission of the case to the jury. The plaintiff testified the defendant showed him as part of the land he offered for sale a tract which he did not own and which was not included in the deed.
The defendant's denial that he intended to sell this tract or showed it as part of the land he was selling did not wipe the plaintiff's evidence out of the case, but authorized the inference that if the plaintiff told the truth, the defendant's act was fraudulent. The question was whether the plaintiff or the defendant told the truth. There is nothing tending to show the superior court in error in finding that the jury in believing the plaintiff and disbelieving the defendant did not fall into a plain mistake, and that such a verdict was not produced by passion, partiality or corruption. The objection that the verdict is against the weight of the evidence raises a question of fact for the trial term, and its decision by that court presents no question for this court, if there is evidence tending to sustain the finding. Stowe v. Payne, ante, 331; Marshall v. Morin, 79 N.H. 351.
Exception overruled.
All concurred.