#### SCHOOF, Respondent, v. HOAGLAND, Appellant.

(183 N. W. 132.)

(File No. 4822.

Opinion filed June 2, 1921.)

Appeal — Sufficiency of Evidence — Conflicting Evidence Warranting Different Conclusions by Different Persons, Non-error in Granting New Trial.

Where the evidence to sustain verdict was of such conflicting nature that different persons might reasonably have drawn different conclusions therefrom, order granting new trial will not be reversed.

Whiting, J., and Polley, P. J., dissenting.

Appeal from Circuit Court, Potter 'County. Hon. Joseph PI. BoTTum, Judge.

Action by William -School, against F. E. Hoagland, to recover a commission 011 alleged sale of realty. From a judgment for defendant, and. from an order granting a new trial, defendant appeals.

Affirmed.

*Jean P. Sargent*and *Sutherland & Payne,*for Appellant.

*O'Keefe & Auldiddge,*for -Respondent.

M-c-CO'Y, J.

Action to recover commissions on alleged sale of real estate. Verdict for defendant. From an order granting a new trial the defendant appeals.

The motion for new trial, among other things, was based on the insufficiency of the evidence to sustain the verdict. We are of the view that the evidence to sustain the verdict was of such a conflicting nature that different persons might reasonably have drawn different conclusions therefrom. Under such circumstances the order granling a new trial should not be reversed.

Finding no error in (he record, the order appealed from is affirmed.

W'HITING, J.

(dissenting.) It is well settled in this state that, where the evidence is -conflicting so that from it different persons might reasonably draw different conclusions, there is vested in the trial court a discretion as to granting a new trial, which discretion will be fully recognized on appeal. Gamble v. Keyes, 39 S. D. 592, 166 N. W. 134. However, in this case there is to be found no conflict of evidence — not a single particular wherein there is a dispute — and respondent has not suggested that the ruling of the trial c'ourt should be sustained on the ground that such ruling was an exercise of discretion based on *185conflict of evidence. His contention is that it should be sustained on the grounds set forth in his specifications of error, being the grounds upon which he -based his motion for new trial, namely, that the evidence was insufficient, in certain essentials, to support the court’s direction of verdict. While, in case of a conflict in the evidence, a trial court is vested with discretion in granting or refusing a new trial, where the evidence is insufficient to support some essential element of a cause of action or defense, there is vested in the trial court no discretion as to what his ruling shall be upon a motion for new trial.

The contract between these parties was evidenced by correspondence had between them; and respondent in his brief very frankly says:

> “The sole issue on this appeal is whether the defendant could, without liability to the plaintiff, sell his land through another agent, within the period of time stated in plaintiff’s contract, in which the plaintiff had the fight to make sale of defendant’s land.”

Appellant contends that the contract did not give respondent the exclusive right to sell, and that he rightfully refuses to pay the commission or damages prayed for because, prior to the time when respondent advised him of the sale he claims to have made, another of his agents had sold this land. One of my colleagues suggests that the evidence is insufficient to prove that such a sale had been made prior to the time respondent -made and reported his sale. If my coleagues are satisfied that such is the fact, they should base their decision thereon, and not on the ground of a conflict in evidence where no conflict exists. I would, however, suggest that the burden of proof rests upon respondent. He pleaded that he found a purchaser ready, able, and willing to buy this land. There is no evidence that such “purchaser” was able to meet the cash payment which, under his contract with respondent, had to be made upon delivery of deed. Because of this failure of proof, the direction of verdict should have stood; but in any case, if a new trial is to be granted, this court should now determine that which respondent contends is the sole issue — ■ whether his contract with appellant gave him the exclusive sale of this land.

POLEEY, P. J., concurs in the dissenting opinion.