The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-05-05

order granting new trial is sustained
This case comes up on exceptions
from the Circuit Court, First Circuit
TO an order granting new trial on
the ground that the verdict, which
was for the defendant, was against
the weight of the evidence.
The question presented to us is not
precisely that presented to the trial
Judge on the motion for new trial,
but rather whether that Judge exer-
cised sound judicial discretion in
granting the motion This is the
rule where the motion is not founded
upon errors OF law. The trial Judge
is IN much better position than we
are to say whether the verdict is in
accordance with substantial justice
between the parties, for he hears the
testimony of the witnesses and the
arguments of counsel, and observes
the whole course of the trial. An
Appellate Court IS more reluctant to
interfere with the exercise of the dis
erection OF the trial court where. as In
this case, Few trial has been grant
ed than where it has been refused.
We so held In Kaanaana VS.. keahi,
at the last September term, and such
IS the prevailing rule in other juris-
dictions. To grant new trial Is but
70 send the parties to another jury,
where another opportunity will be
given for full and fair investigation
of their rights, while to refuse new
trial is to settle the case forever. Con-
sequently, where there is a serious
question as to the correctness of a
verdict. and q new trial has been
granted by the trial court in the
exercise of its judicial discretion, the
Appellate Court should not revise
such exercise of discretion unless it
appears to have been abused.
Upon careful examination Of this
case we are of the opinion that there
is serious question as to the
correctness of the verdict, and that
the trial court did not abuse its
discretion In granting new trial.
While we may not, under the cir
cumstances of this case. have reversed
the order, If new trial had been
refused, yet we think, on the other
hand, that the order granting new
trial should stand.
The action was brought upon a
promissory note The sole defense
was want of consideration. The
defendant had been in the employ
ment of plaintiff as manager. of
ranch, and upon the termination of
this relation signed note payable in
one year. At the end of the year,
upon the request OF the plaintiff for
payment and the disability OF the de-
PENDANT to pay, a new note was sign
ed for larger amount, the increase
being presumably for accumulated
interest. This second note is the
subject of the action.
The defendant admits that he
signed both notes, but claims that he |
signed the first as matter of &C
commodation to enable the plaintiff |
to make showing TO his brother, E. /
w. Macfarlane, manager Of the |
Union Feed Company, who appears
to have acted to some extent as agent |
of the ranch, IN Honolulu. The |
plaintiff claims that this note was
given for the balance found to be
due upon a final accounting between |
the parties.
The note itself is prinaa Jacte evil
dence of a valuable consideration.
II contains a recital OF $ value receiv
ed" The burden OF proof rested |
upon the defendant to show want of |
consideration A statement of &C
count was produced showing bal
ance due the plaintiff Of the amount |
of the first note. There is some dis |
pute as to when this statement was
presented to the defendant. The de-
fendant admits that he and the /
plaintiff went over the ranch books
together the day before he left, for |
the purpose of ascertaining the bal |
ance due, but says that because some
accounts were In town they were
unable to strike a balance, and that |
he signed the note on the under
standing that the amount should be
altered, If found to be incorrect when
full statement should. be made.
He then says, incontistently, that he
owed the plaintiff nothing but signed
the note solely by way of accommo
dalton. He does not explain why
the note was made for this particular
amount, S54o06. He kept no books
OF his own and was unable To make
any statement of account himself.
His reason for believing prior to the
signing OF the note that he owed
nothing was, be says, that he had
not been told that ne was behind.
He then goes on to say that the
ranch was indebted to him, bnt does
not seem to have ever thought of
asking for the balance, If any, due
him. He says that he does not know
how the account stood, and does not
remember what he has drawn, nor