Page:North Dakota Reports (vol. 2).pdf/284

 he understood it, as a settlement between him and his sons. That the transaction.did not take place as of the date of the instruments, but at the former date. That he “was doing business with his sons, and supposed everything was all satisfactory,” and that his only object in turning the business over was that he might get out of business, and the sons establish a business for themselves. That he was never a member of the firm of Gillitt Bros.

Without indicating whether or not this explanation would be satisfactory to the reasonable mind, this, at least, is true: It is not inherently impossible, nor so strikingly improbable as to warrant a court in saying, as a matter of law, that it is false. If appellant's testimony were the only testimony in the case upon the issue involved, it certainly would, as we think, have a tendency to establish that issue in appellant’s favor. If we are right, then there was a substantial conflict in the evidence. Had the jury found the issue for the appellant on all the testimony, no court could safely say that such verdict was so far against the weight of evidence as to unmistakably point to the presence of bias, passion, or prejudice in the jury. When a court directs a verdict for either party, the evidence of the opposite party must be considered as undisputed, and it must be given the most favorable construction for him that it will properly bear, and he must have the benefit of all reasonable inferences arising from his testimony; and it is only where his testimony, thus considered, could not legally sustain a verdict in his favor, that a court is warranted in directing a verdict against him. See 11 Amer. & Eng. Enc. Law 245, and authorities there collated.

What we have said is sufficient to dispose of the case, but as two other points that are presented may arise again upon another trial we will notice them. Against appellant’s repeated objections for incompetency, the respondents were permitted to prove, by the credit man in their employ, the representations and statements made to him by George H. Gillitt to show that Harvey Gillitt was a member of the firm of Gillitt Bros. There was no attempt to show that Harvey Gillitt ever authorized any such statements to be made, or knew that they had been