Osborne

The Osbornes (hereinafter plaintiff) as seller brought an action for damages for buyer’s refusal to purchase real property. The jury returned a verdict for defendant buyer, but the trial court granted plaintiff a new trial on the ground that the court had abused its discretion (1) by admonishing plaintiff and his counsel in front of the jury, and (2) by refusing to allow plaintiff on rebuttal to call an expert witness to testify to the fair market value of the real property at the date of breach. In its memorandum opinion granting a new trial the court indicated it was convinced “beyond any reasonable doubt” that plaintiff’s case had no merit; that plaintiff’s own conduct produced the court’s admonitions; that there was no excuse for not calling the expert witness on plaintiff’s case in chief. Nevertheless, the court granted a new trial, stating that to ensure justice for all it must be afforded to “the worst.”

Defendant appeals, contending that the record sustains no possible judgment for plaintiff; that if there were abuse of judicial discretion during the trial, such abuse was not prejudicial.

The key issue in the cause involves defendant’s right to verify income and…