18 N.Y.S. 271 | N.Y. Sup. Ct. | 1892
This action was brought to recover $308.90, the purchase price of some tobacco alleged to have been sold by plaintiff to defendant. The evidence is not before us, but apparently there was no question as to the amount of the claim, but as to whether there was a legal contract of sale between plaintiff and defendant. The court in its charge to the jury said: “The price agreed upon was $368.90, which amount the plaintiff asks now to recover, with interest added to it from the 1st of January. If that contract was a legal contract, plaintiff is entitled to recover the full amount, principal and interest, from the 1st of January last, because the tobacco by the agreement was to have been paid for during the year 1890. The only question is: “ Was that a legal contract?” Ho exception was taken to this charge. The jury retired, and the following morning presented a sealed verdict, in these words: “We, the undersigned jurors, find a verdict for the plaintiff.” The plaintiff’s counsel requested the court to direct the jury to retire and fix the amount they find for the plaintiff, the jury being yet present, not having finally separated. The court refused, on the ground that the jury had separated overnight, and it was a sealed verdict, and stated that it was irregular in not stating any amount, and for that reason he would set it aside, and direct a new trial; whereupon the motion of defendant to set aside the verdict, and direct a new trial, was granted on the ground stated by the court. From that order the plaintiff appeals to this court. After the making of such order, and-at the same term of the court, the plaintiff moved to vacate the order setting aside the verdict, and ordering a new trial, and to correct the verdict to make it conform to the intention of the jury. Upon such motion, in addition to the minutes of the trial, the affidavits of all the jurors, under objection by the defendant to the use thereof, were read, showing that they supposed it was not necessary to state the amount, deeming a finding in favor of the plaintiff sufficient to entitle him to the recovery of the amount claimed, with interest. This motion was also denied, and from the order denying such motion the plaintiff has taken a separate appeal to this court. Both appeals will be considered together. The affidavits were properly received, to make manifest what the verdict meant, not to impeach or reverse it. Dalrymple v. Williams, 63 N. Y. 361; Hodgkins v. Mead, (City Ct. Brook.) 5 N. Y. Supp. 433, affirmed 119 N. Y. 166, 23 N. E. Rep. 559. The amount of the debt was unquestioned. Whether or not the plaintiff was entitled to recover it from the defendant was a question of fact for the jury, and the only question for them