Brinkerhoff

I concur in the affirmance of the order granting the motion for a new trial on the ground that this court will not reverse such an order if there be a substantial conflict in the evidence upon any material issue in the case. And in this case it appears to me that upon the question of fraud the evidence was conflicting, and that the court, having found upon such evidence that there was actual fraud, its subsequent order granting a new trial cannot be disturbed.

I concur: McHinstry, J.

Upon the trial of this case, in the district court, the court, in refusing defendants’ motion for a nonsuit, said:

Subsequently, the court found that the defendants Brinkerhoíf and Scollan willfully, falsely, fraudulently, and with the intent to cheat and defraud Octaviano Gutierrez out of the land in question, induced him to execute a deed thereof; and rendered judgment for plaintiff.

A motion for new trial was heard before the superior court, successor of the district court, and the superior court, in granting the motion, held that there was no evidence showing actual fraud on the part of the defendants, Hutchinson, Conway, and Brinkerhoff, or either of them.

The motion for nonsuit should have been granted. The testimony fails to show that such relations existed between the parties as prevented them from making the transactions complained of. Possibly the transactions may have been improvident on the part of Octaviano; but the testimony fails to show that he was overreached through actual fraud.

Order affirmed.