Hughes

Plaintiff recovered judgment in the lower court and defendant appealed. The judgment- was affirmed in Department and defendant’s petition for rehearing was granted. We accept and adopt the defendant’s statements with reference to the issues and evidence with certain exceptions to be hereafter noted. The statement is as follows:

During the trial the following stipulation with reference to the facts was entered into between the parties:

In addition to the summary thereof contained in the above statement, plaintiff testified as follows:

The appellant asserts that the plaintiff was present at the meeting of June 21, 1910, and voted for the above resolution. Plaintiff stated that he had no recollection of the passage of the resolution and knew nothing whatever about it. The minutes recite that he was present at the meeting and that the resolution was passed unanimously. Under this evidence, of course, the trial court could have taken the view that the plaintiff retired from the meeting before the passage of the resolution.

[1] The fundamental question upon appeal is whether or not there has been a miscarriage of justice. In considering that question in the case at bar we have the…