"6. It is insufficient in that it fails to prove seduction of the plaintiff by the defendant.

"7. It is insufficient in that it fails to show that the sexual intercourse, if any, was subsequent to the promise of marriage alleged.

"8. It is insufficient in that it fails to show that plaintiff consented to sexual intercourse with defendant, solely by reason of such promise. "9. It is insufficient in that it fails to show that there would have been no consent except for the promise.

"10. It is insufficient in that, it fails to show who was the father of the child born to plaintiff. The evidence of the plaintiff as to the paternity of the child is contradicted in every particular, and her testimony stands alone.

"11. It is insufficient in this, that evidence of sexual intercourse is incompetent and inadmissible to show a mutual or implied promise of marriage, and when such relations appear from the testimony, as in this case, to have been illicit, immoral, and illegal, in their inception, the evidence is incompetent and inadmissible to prove a contract of marriage, as a promise or a contract based on an immoral or illegal consideration is against public policy, is unenforceable, and absolutely void."

In their printed brief in this court they argue the above particulars under eight separate points or subheads, but we deem it sufficient to treat the matters together and only in a general way. It would serve no useful purpose to go into minute details in reviewing the testimony, or to quote at length therefrom. It is, in all essential particulars, substantially the same as disclosed by the record on the former appeal. If anything, it is a little stronger in respondent's favor on the present appeal than it was on the former one. On such former appeal the question of the sufficiency of the evidence was raised and elaborately argued, and we there held it sufficient for submission to the jury, and we see no good or sound reason for holding to the contrary on this record, even if we were free to do so. But the testimony being in substance and effect the same on both appeals, our decision on this point in respondent's favor on the first appeal became the law of the case, and, under a well-settled rule, was controlling on the district court at the last trial, and is controlling here on this appeal. 3 Cyc. 402; Street v. Chicago, M. & St. P. R. Co. 130 Minn. 246, 153 N. W. 518; Musser v. Musser,

98 Neb. 398, 152 N. W. 746. We need not rest our decision, however, on such rule alone; for an examination of the record serves to convince us that, while the testimony is in some respects weak and unsatisfactory, we think it was nevertheless clearly the duty of the trial court to submit the same to the jury. The distinguished counsel for appellant evidently thought likewise at the trial, or they at least recognized the force of the rule above mentioned; for they made no motion, either at the close of plaintiff's testimony or after both parties had rested their case, to exclude the same from the jury. They were therefore in rather poor position to urge their motion for a new trial in the court below on this point, and are in equally poor position to ask this court to now decide that the lower court, in denying their motion based on such ground, abused its discretion. By this we do not wish to be understood as holding that appellant is solely, by reason of such failure, now precluded absolutely from raising the question of the sufficiency of the evidence, but it is a circumstance entitled to be noticed in considering the merits under this specification.

Owing to the importance of the case, we have concluded to briefly state some additional reasons for holding that specification numbered 1 cannot be sustained. In the first place, this action has been tried three times in the court below, and on each trial a verdict was returned in respondent's favor. The second verdict was for $12,000, and was vacated by stipulation on the ground of a mistrial. The first and third verdicts were each for $10,000. It is a general rule that where two or more successive and concurrent verdicts have been returned, the appellate court will be strongly disinclined to interfere with the last one, if the evidence is conflicting and there is any evidence reasonably tending to support the verdict, even though it may not be entirely satisfactory or such as would lead the appellate court to the same conclusion upon an original consideration, unless it is plain that the verdict is based upon evidence which does not tend to prove a material fact necessary to a recovery, or is in palpable disregard of the evidence. 3 Cyc. 355, 356, and cases cited; see also the citations to recent cases in the 1916 supplement to Cyc.

It is contended that the evidence does not show an express promise of marriage, or that plaintiff gave her consent to marry defendant. This contention is overruled. The complaint does not allege an express prom

ise, and all that it was incumbent on plaintiff to prove was a state of facts from which it might reasonably be inferred that a mutual agreement to marry was entered into. 5 Cyc. 1016; Green v. Spencer, 3 Mo. 318, 26 Am. Dec. 672; Musselman v. Barker, 26 Neb. 737, 42 N. W. 759; Wightman v. Coates, 15 Mass. 1, 8 Am. Dec. 77; McConahey v. Griffey, 82 Iowa, 564, 48 N. W. 983. On the former appeal we held the evidence sufficient on this point, and it was in substance the same on this last trial.

Appellant's points 2 and 3 relate to the alleged insufficiency of the evidence to show an implied promise of marriage consented to by plaintiff, and they are already sufficiently answered.

Under point 4 appellant cites numerous authorities to the proposition that a promise of marriage based upon an immoral or illegal consideration such as illicit sexual intercourse is void as against public policy. These authorities, no doubt, correctly state the law, but they are not here in point, for under plaintiff's testimony, which the jury evidently believed to be true, they had a right to infer that a promise of marriage was made some time prior to the first act of sexual intercourse between the parties, and that the consideration for such promise was not the subsequent illicit relations. Plaintiff did not rely upon proof of such illicit intercourse to establish the promise of marriage, but she did rely thereon to show in aggravation of damages that defendant seduced her. We disagree with appellant's counsel in his statement under point 5, that there is no proof that the promise of marriage was the inducing cause which led to the sexual intercourse. It may be true that there is no direct testimony to this effect, but such proof was not required, as the jury were justified in inferring this from all the facts and circumstances. They were also justified in the inference that defendant promised to marry plaintiff without any intention whatever of keeping such promise, and with the corrupt intent of later using the promise in persuading plaintiff to yield her person to satisfy his lustful desires.

Points 6 to 8 inclusive have been considered and we deem them untenable. We do not question the correctness of the rules of law as announced by the authorities cited by appellant's counsel under these points, but we deem them not applicable or controlling under the record facts in the case at bar. Having reached the conclusion that the evidence is sufficient to support the verdict, and that the trial court did not

abuse his discretion in denying the motion for a new trial on the ground of alleged insufficiency of the evidence, nothing further need be said. with reference to specifications numbered 1 to 3.

This brings us to the appellant's last specification, which is, "Excessive damages appearing to have been given under the influence of passion or prejudice." In support of this specification counsel cite numerous authorities upon the duty of the court in cases where it has arrived at the legal conclusion that the verdict is excessive and rendered through passion and prejudice. We need not cite these authorities in this opinion. They are, no doubt, sound, but they merely voice the plain rule of our statute, § 7660, Comp. Laws 1913. The question which we are here. called upon to decide is whether, as a matter of law, we should hold that the verdict is excessive and apparently given under the influence of passion or prejudice. As before stated, the case has been tried three times, with the same result, except, at the second trial, the verdict was for $12,000. In the light of these facts when considered in connection with all the facts and circumstances disclosed by the record, it would be rather presumptuous on our part to say, what the trial judge refused to say, that these triers of the facts were actuated by prejudice or bias in assessing plaintiff's damages. Clearly we would not be justified in so holding. Nor are we justified, under the authorities, in saying as a matter of law that the verdict is excessive under the proof. It is well settled that an appellate court will not interfere in such cases, unless the verdict is so grossly and palpably excessive as to shock the moral sense and raise a reasonable presumption that the jury must have been influenced by passion or prejudice in arriving at the verdict. Lanigan v. Neely, 4 Cal. App. 760, 89 Pac.. 441; Bennett v. Beam, 42 Mich. 346, 36 Am. Rep. 442, 4 N. W. 8; Marshall v. Taylor, 98 Cal. 55, 35 Am. St. Rep. 144, 32 Pac. 867; Cox v. Edwards, 126 Minn. 350, 148 N. W. 500, Ann. Cas. 1915D, 491. In the latter case a verdict for $17,425 was sustained, the defendant admitting that he was worth from $75,000 to $100,000. In Пess v. Zimmer, 152 Wis. 193, 139 N. W. 740, a verdict for $2,000 was held not excessive, defendant owning property worth but $12,000. In Liese v. Meyer, 143 Mo. 547, 45 S. W. 282, a verdict for $10,000 was held not excessive. See also Geiger v. Payne, 102 Iowa, 581, 69 N. W. 554, 71 N. W. 571, where a verdict for $16,000 was sustained as not ex

cessive, the proof showing defendant's wealth to be from $50,000 to

$75,000.

Numerous other examples of what are and what are not excessive verdicts in cases of this nature may be found in 41 L.R.A. (N.S.) 853, note; also 16 Ann. Cas. 981, note.

We feel constrained for the above reasons to overrule the various contentions of the appellant. The judgment and order are accordingly affirmed.

F. C. RISING v. D. O. TOLLERUD.

(157 N. W. 696.)

Action to recover for money claimed to be overpaid upon a threshing bill. Trial to court without a jury. Evidence examined and held:

trial to

Threshing bill money overpaid on - action to recover back grain threshed - amounts — testimony

court evidence

findings

1. That the finding of the trial court that there was not competent evidence introduced by the plaintiff to show any other amounts of grain threshed than shown by the tally is not against the clear preponderance of the testimony.

2. The evidence discloses that plaintiff paid said sums with a full knowledge of all of the facts now known to him, and for that reason should not recover in this action.

Opinion filed April 10, 1916. Rehearing denied April 29, 1916.

Appeal from the County Court of Benson County, Comstock, J. Affirmed.

R. A. Stuart, for appellant.

Where a party, with full knowledge of all the facts, pays a demand that is unjustly made against him, and to which he has a valid defense, and where there is no fraud, such payment is voluntary and cannot be