No. 81-507 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

JAMES FORDYCE and TIIELPW FORDYCE , 

Plaintiffs and Appellants, 

VS . 

LEE HANSEN, 

Defendant and Respondent. 

Appeal from: District Court of the Tenth Judicial District, 

In and for the County of Judith Basin 

Honorable LeRoy L. McKinnon, Judge presiding. 

Counsel of Record: 

For Appellants: 

B. Miles Larson, Stanford, Montana 

For Respondent: 

John R. Christensen, Stanford, Montana 

Submitted on briefs: March 25, 1982 

Decided: June 10, 1982 

Filed: JUN 1 O 1982 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Plaintiffs appeal from an order denying their motion 

for a new trial following a jury trial in the District 

Court, Tenth Judicial District. They base their appeal on 

two issues: 1) Was there such an irregularity in the 

proceedings of the court that the substantial rights of the 

plaintiffs were affected? 2) Was there newly discovered 

evidence material to plaintiffs' case which could not, with 

reasonable diligence, have been discovered and produced by 

them at trial? 

Defendant Lee Hanson, on about May 1, 1980, placed a 

newspaper advertisement for sale of a "barrel horse" with 

"lots of spirit, $1,500." 

Plaintiff James Fordyce therafter went to Hansen's 

ranch to inspect the animal. After looking at it, he 

expressed a concern that it might have a "navicular" disease. 

Hansen assured him that the horse was sound. Hansen also 

informed him that there wereseveral other prospective buyers 

for the horse, but no deal was made at that time. 

Later that day, Thelma Fordyce called Hansen to tell him 

they would take the horse. 

Two days later, James Fordyce and his three daughters 

went to Hansen's ranch to pick up the horse. They paid for 

the horse with a cashier's check and left with the bill of 

sale and registration papers. This transaction took 

approximately two hours because arrangements had been made 

to have the horse shod. The Fordyce's did not attempt 

to ride the horse during this time, nor had James Fordyce 

ridden the horse on his initial visit to the Hansen ranch. 
The Fordyces returned to Lewistown where they saddled 

the horse, rode it, and took it to a nearby arena. There, 

13 year old Teresa Fordyce, for whom the horse had been 

purchased, attempted to run the horse through the barrels. 

Despite her 3 to 4 years of experience as a barrel racer, 

she was unable to make the horse perform. After 5 or 6 

attempts, the effort was abandoned and they all went home. 

The next day, James Fordyce took the horse back to 

Hansen's ranch and demanded his money back because it was 

"not a barrel racing horse." Hansen told Fordyce that he 

had already advised other buyers that the horse had been 

sold, so he was not anxious to have it returned. He did 

offer Fordyce $1,200, which Fordyce refused, returning all 

papers except the bill of sale. He also left the horse, 

which remained on Hansen's ranch from that day in early May 

1980, until after the trial in June 1981, when it was 

returned to the Fordyces. 

Plaintiffs brought this action in October 1980 to 

recover the $1,500. Hansen counterclaimed for the costs of 

boarding the horse, at $1.25 per day, from May 1, 1980 until 

it was removed from his premises by the plaintiffs. 

Trial was held on June 3, 1981. The jury found against 

the plaintiffs and awarded the defendant $485 on his counterclaim. After judgment, plaintiffs filed a motion for a new 

trial, the denial of which is the basis for this appeal. 

The first issue raised by the Fordyces is that they 

are entitled to a new trial because, while the jury was 

deliberating the cause, "at least two questions were asked 

by the jury of the district judge by and through the bailiff." 

The amended motion for new trial states that such questions 

and answers occurred out of the presence of counsel for the 
plaintiffs. The motion is supported by the affidavit 

of Thelma Fordyce, but the affidavit does not specify 

what the questions were. 

In denying the new trial, the district judge, after 

a hearing on the motion, stated in his order that the 

question asked by the jury through the bailiff was "whether 

all forms for verdict which had been submitted had to be 

filled out, to which the bailiff was told to tell them to 

use only such form as fitted their verdict." 

Of course the better practice, to avoid error, would 

have been to conduct the jury into court for the desired 

information, pursuant to section 25-7-405, MCA. However, 

because of the innocuous nature of the communication to the 

jury here, we find no prejudicial error. The ultimate 

inquiry is whether this irregularity affected any substantial 

right of the plaintiffs. Galiger v. Hansen (1957), 133 Mont. 

34, 42, 319 P.2d 1051, 1055-56, and we find none was so 

affected. 

The second issue presented by Thelma Fordyce's posttrial affidavit is the implication that the district judge 

knew the verdict before it was rendered because he stated 

to Thelma: "What are you going to do with the horse now, 

you got him back. " 

Again, in the order. denying the new trial, the district 

judge found that "the judge spoke to the little girl, 

daughter of the plaintiffs, to ask if she got the horse back 

she would be able to ride in this season [sic] races. It 

is true that the plaintiff, Thelma Fordyce answered without 

giving the daughter opportunity to do so; that at that time 

the judge did not know what the verdict would be." 
We find no error of any kind in the second issue. 

Once a District Court has considered and denied 

motion for new trial, this Court will not lightly disturb 

that ruling absent evidence that is clear, convincing and 

practically free from doubt of the trial court's error. 

Schmoyer v. Bourdeau (1966), 148 Mont. 340, 343, 420 P.2d 

316, 317-18. No such showing is made here. 

Appellant's third issue is derived from section 25-11- 

102(4), which states as grounds for a new trial, "newly 

discovered evidence material for the party making the 

application which he could not, with reasonable diligence, 

have discovered and produced at the trial." 

The claimed newly-discovered evidence here comes from 

the affidavit of Boyd Emond, D.V.M., who inspected the horse 

after the Fordyces retrieved it. He found that the horse 

was suffering from a navicular bone disease and suggested 

that it not be ridden in the future. 

The District Court, in its order denying a new trial, 

stated that this evidence was available before trial and we 

agree. Where additional evidence comes to light, the party 

moving for a new trial must demonstrate that it was not lack 

of diligence which failed to turn up the new evidence at an 

earlier time. Giles v. Flint Val. Forest Products (19791, 

179 Mont. 382, 385, 588 P.2d 535, 537. See ~errigan v. 

Kerrigan (1943), 115 Mont. 136, 144-45, 139 P.2d 533, 535. 

Here, Fordyce, on his initial inspection of the horse, 

suggested that it had a navicular disease, but did not have 

it inspected. Neither was it inspected at any time before 

it was returned to Hansen's ranch. Furthermore, no motion 

for discovery was filed during the course of the litigation. 
The evidence was available at all times. It could have been 

discovered and produced at trial with reasonable diligence. 

Respondents contend this appeal is frivolous. It is 

indeed close to the line of frivolity. We have determined 

to resolve doubt in favor of appellants, and do not assess 

any damages on that account. 

A£ firmed. 

, : Justice 

FJe Concur: 

?z'b,R& (;ac, 

Chief Justice