In other words, we must find an absence of substantial evidence to warrant submission to the jury for if there exists substantial evidence to support the jury's verdict, then it must be sustained. Lyndes v. Scofield (1979), 180 Mont. 177, 180, 589 P.2d 1000, 1002; Brothers v. Town of Virginia City (1976), 171 Mont. 352, 357 558 P.2d 464, 467. Thus it becomes our duty to review the evidence to determine if the verdict is supported by substantial evidence when the case comes to us on appeal. Davis v. Davis (1972), 159 Mont. 355, 361, 497 P.2d 315, 318. Gunlocks' negligence claims against Western arise out of these issues of fact: (1) Western, through its employee Smith, was negligent in using and recommending the angle iron safety strut; (2) Western was negligent in failing to advise Gunlocks of the availability of a manufactured bolt-on strut for the Model 450 crawler loader, or to provide Gunlock with a new operator's manual which recommended the use of a bolt-on strut; and (3) Western was negligent through failure to warn Gunlock of the danger of using a safety strut that did not bolt to the loader lift cylinder.
It is Bishop's position that this statement disposed of any problem with the one-year requirement of the statute of frauds for oral contracts. In support of his argument that there was a contract, Bishop cited Davis v. Davis (1972), 159 Mont. 355, 497 P.2d 315, which provides that oral contracts, fully executed by one of the parties represent a well-recognized exception to the statute of frauds. Bishop contended the hiring of Hendrickson's daughter as a law clerk completed the oral contract and satisfied the statute of frauds.
Moreoever, the memorandum was received in evidence during the trial in the District Court without objection and especially without contention that the memorandum did not satisfy the statute of frauds. We will ordinarily not review an issue in the Supreme Court that has not been raised in the District Court. Chadwick v. Giberson (1980), Mont., 618 P.2d 1213, 1215, 37 St.Rep. 1723, 1726; Davis v. Davis (1972), 159 Mont. 355, 361, 497 P.2d 315, 318. Appellants contend, however, that the lack of objection at the time of trial should not be fatal here because the legal insufficiency of the memorandum survives as an issue in the Supreme Court. We have indeed held that the Supreme Court has the duty to determine whether parties were denied substantial justice in the District Court and that we can consider, using discretion, whether the lower court deprived a party of a fair and impartial trial even if an objection was not raised there. McAlpine v. Midland Electric Co. (1981), Mont., 634 P.2d 1166, 38 St.Rep. 1577.
Respondent's testimony is left uncontradicted that the agreed value was in fact $50 per hour and that he did perform the services of value as contended and that appellants produced no proof whatsoever of payment. We rely on Davis v. Davis (1972), 159 Mont. 355, 360, 497 P.2d 315, 318, in deciding this matter where this Court held: "The pretrial order setting forth defendant's contentions indicates that the contracts under which the plaintiffs were employed were terminable at will, and maintains a denial of any of plaintiffs' alleged contracts with defendant.
When the question of whether the evidence supports the verdict is before this Court, we have a duty to review the evidence to decide if the verdict is supported by substantial evidence. Bernhard v. Lincoln County (1968), 150 Mont. 557, 560-61, 437 P.2d 377, 380. A verdict must have substantial evidence to support it. Davis v. Davis (1972), 159 Mont. 355, 361, 497 P.2d 315, 318. Here there is no substantial evidence to support the verdict of the jury because there is no evidence that this plane would break up in clear skies in level fight. Since the plane was flying in clouds at the time of its breakup, the conclusion is inescapable that the pilot got into conditions for which he was untrained and unqualified and which were beyond the capability of the plane to withstand.
In so doing, it will review the evidence in the light most favorable to the prevailing party. See Davis v. Davis (1972), 159 Mont. 355, 497 P. 21d 315, and State Highway Commission v. Vaughan (1970), 155 Mont. 277, 470 P.2d 967. D-1. Did Sornsin Construction Company assume the risk of failure of its proposed cofferdam designs?
Thus, where evidence is "inherently impossible or improbable", it is not treated as substantial evidence which may be relied upon to support a judgment. Davis v. Davis (1972), 159 Mont. 355, 361, 497 P.2d 315, 318; Strong v. Williams, 154 Mont. at 68, 460 P.2d at 92. The review must also be of the entire record, to determine whether a "preponderance of the evidence" is against the District Court's findings. Kearns v. McIntyre Construction Co. (1977), 173 Mont. 239, 567 P.2d 433, 438; Horacek v. Hudson (1975), 167 Mont. 394, 397, 538 P.2d 1019, 1021.
"It is well settled in this jurisdiction that wherever there is a conflict in the evidence this Court may only review the testimony for the purpose of determining whether there is any substantial evidence in the record to support the verdict * * *. Where the evidence is conflicting, but substantial evidence appears in the record to support the judgment, the judgment will not be distrubed on appeal * * *." See also: Kirby v. Kelly (1972), 161 Mont. 66, 504 P.2d 683; Davis v. Davis (1972), 159 Mont. 355, 497 P.2d 315. It is apparent from the record that the jury as a matter of law misconstrued the court's instruction on the measure of damages for breach of warranty i.e., the difference between the value they would have had if they had been as warranted. The jury awarded the sum of $12,691.90 for the trailer as a part of the general damages.
" To the same effect, see Kirby v. Kelly, 161 Mont. 66, 504 P.2d 683; Davis v. Davis, 159 Mont. 355, 497 P.2d 315. We find there was substantial evidence submitted to the trier of fact for it to find that plaintiff was not guilty of contributory negligence nor assumed the risk of his actions and that plaintiff's injuries were proximately caused by the defective design of his Honda 90 motorcycle.
Hornung v. Estate of Lagerquist, 155 Mont. 412, 420, 473 P.2d 541. The fact that there may have been conflicts in the testimony does not mean there is not substantial evidence to support the verdict. Davis v. Davis, 159 Mont. 355, 361, 497 P.2d 315. Transamerica Ins. Co. v. Glacier Gen. Assur. Co., 163 Mont. 454, 461, 517 P.2d 888. In the instant matter evidence was presented by each party and, of necessity, was in part conflicting.