Castor

The plaintiff seeks by this action to recover damages from the defendant for the breach of a contract entered into between him and the plaintiff’s assignor. In his answer the defendant sets up several defenses, one of which is that prior to the assignment to the plaintiff his assignor, by an instrument executed by him, released the defendant from all claims arising out of the contract alleged in the complaint.- At the trial the plaintiff offered in evidence, the assignment to him and rested. The defendant then offered in evidence the written instrument of release alleged in his answer. The plaintiff objected to its introduction, upon the ground that there had been no proof of its execution, or of the signature of the maker thereof, or of the subscribing witness. The defendant then stating that he proposed to submit the paper to the jury for comparison with the signature to the assignment to the plaintiff already in evidence, as proof of its execution, the plaintiff made the further objection that proof by comparison of writings could not be made entirely by the jury; that the genuineness of the disputed writing must be first shown by a witness. The court overruled these…

The instrument claimed to be a release was admitted in evidence by the trial court, and was thus a part of the record upon which the jury rendered its verdict. The court, therefore, on the motion for a new trial, had the right to review the evidence, and to set aside the verdict of the jury if it believed such verdict was not supported thereby. The court did review the evidence; and, believing that the verdict was contrary thereto, granted the new trial. There was no abuse of discretion in malting the order. Conceding that the court erroneously admitted the release in evidence, that would not change the result, although it would have been ground of complaint if the verdict had been against plaintiff. ■ But the plaintiff cannot, on an appeal from the order granting a new trial, claim that because of an erroneous ruling there was no evidence at all upon which a verdict or judgment could have been rendered for the defendant. If the objection of the plaintiff to the release had been sustained, then the defendant might have proved the execution of the release by other evidence. An order granting a new trial must be affirmed, unless there is a clear abuse of discretion. (Hausmann v.…