159 F. 102 | 2d Cir. | 1908
The plaintiff below obtained a verdict of $5,000, which he regarded as1 inadequate, and moved to set aside for that reason. The motion was elaborately argued, carefully considered, and denied. The motion was addressed to the discretion of the court, and its denial is not the subject of review in an appellate court. This rule has been so long established and so uniformly adhered to by this court that discussion as to its wisdom and propriety is unnecessary. Clement v. Wilson, 135 Fed. 749, 68 C. C. A. 387; United Engineering, etc., Co. v. Broadnax, 136 Fed. 351, 69 C. C. A. 177; Central Vt. R. Co. v. Bateman, 75 Fed. 1021, 20 C. C. A. 679.
As the verdict was in the plaintiff’s favor on the merits, it is not easy to see how he can take advantage of alleged errors in the admission and exclusion of testimony or in the charge. On every question at issue the jury found in favor of the plaintiff, even on the question of damages. His only grievance is that they assessed his damages at too low a figure. We think the plaintiff has failed to assign any error which entitles him to a new trial.
The defendant has also sued out a writ of error presenting the question of law that the contract in suit is not valid and enforceable. We are of the opinion that defendant’s position in this regard is not well taken. We agree with the trial judge in thinking that “the contract is not void for want of mutuality; it is based upon a good and sufficient consideration, and its effect was to cancel an existing contract and make a new arrangement * * * which was * * * binding upon the defendant to sell the output of the mine and upon the plaintiff to take the output under those provisions.”
Both writs of error are dismissed, and the judgment is affirmed. As the writ of the plaintiff below was allowed in August, 1905, and that of the defendant below not until P'ebruary 2, 1906, six months afterwards, and as the greater part of the record was necessary for the presentation of the plaintiff’s assignments of error, we think the costs of this review should be borne by him.
