Duncan v. Holder

Citations

• 15 N.M. 323
• 107 P. 685

Syllabus

<p>SYLLABUS.</p> <p>1. Record examined and verdict of the jury as to question of agency sustained.</p> <p>2. In cases where a principal sues his agent for money had and received by the agent for a sale of the principal’s-property, the value of the property is quite immaterial.</p> <p>3. Even if agent receives a greater price than that fixed by the principal, he is bound to account for it.</p> <p>4. It was not error for the court below to fail in instructing the jury on a point not raised by the pleadings.</p> <p>5. If advantage be not taken, of a variance between the pleadings and the allegations,, at the trial such variance will be treated as waived.</p> <p>6. The granting or refusal of a motion for a new trial,, being addressed to the sound discretion of the trial court, will not unless it plainly appears that such discretion has been abused, be reviewed on appeal.</p> <p>7. It is not the office of a motion for a new trial to raise-any question not relied upon at the hearing.</p> <p>8. Points not raised or insisted upon at the trial cannot be presented' and urged on appeal.</p> <p>9. Allowance of mileage for distance necessarily traveled in the Territory by witness who voluntarily appeared, was proper.</p>