Opinion
Decided December, 1880.
When, on a reserved case, a verdict for the plaintiff has been set aside because a motion for a nonsuit made at the trial should have been granted, for want of evidence which the plaintiff may be able to produce, the plaintiff is ordinarily entitled to a new trial.
ASSUMPSIT, reported in 59 N.H. 298.
Copeland Edgerly, for the plaintiff.
Wheeler, for the defendants.
The plaintiff had a verdict, which was set aside because a motion made at the trial should have been granted. There was a want of certain evidence on the part of the plaintiff, but this evidence he may be able to produce at another trial. He claims a new trial, and the defendants claim a judgment. There might be a reason for requiring a party to produce all his evidence at the first trial, and there might be a reason for giving him another opportunity. In this case, if the motion for a nonsuit had been sustained at the trial, a motion by the plaintiff for leave to supply the defect in his evidence might have been granted; and there does not appear to be sufficient cause for giving the defendant judgment.
Case discharged.
ALLEN and BLODGETT, JJ., concurred: the others did not sit.