¹ Reported in 221 N.W. 641. Action by an undertaker to recover upon express contract for services rendered in the burial of the body of a deceased employe of the defendant. After trial without a jury and decision for plaintiff, defendant appeals from the order denying his motion for a new trial.

It is enough to say that plaintiff asserts and defendant denies the alleged contract which is the basis of the suit, and that the evidence is such that, so far as the record indicates, the case might well have been decided either way by a trier of the facts. The testimony for plaintiff is not all that might be asked in support of an affirmative finding. On the other hand, that for defendant is by no means conclusive.

The motion for a new trial was based in part upon the alleged discovery of new and important evidence. It was the testimony of two persons, one a son and the other an employe of the defendant. The trial judge was entirely right in considering that if such testimony were available due diligence should have produced it at the trial.

Order affirmed. *Page 619

On December 7, 1928, the following order was filed:

The clerk taxed costs and disbursements in favor of the prevailing party against the objection that he had neglected to tax the same within 20 days after notice of the decision. The taxation is affirmed on the authority of Fitzpatrick v. C. M. St. P. Ry. Co. 121 Minn. 370, 375, 141 N.W. 485, 486 (per curiam). But we call the attention of the bar to the fact that the rules upon the subject of taxation of costs and entry of judgment in this court have now been materially altered so that the decision above referred to may not be taken as a safe guide in the future.