Isbell-Porter Co. v. Braker

105 N.Y.S. 1103 | N.Y. App. Div. | 1907

Lambert, J.:

. The plaintiff, through its president, undertook to construct certain work for the purpose of installing an experimental gas works at the Flushing Gas Works, and the. principal question- involved is whether the defendant is-personally liable for the amount of the contract price of such work. The .'negotiations were had with Mr. Braker, the defendant, who was the treasurer of the International Sanitary Gas Company. A conflict of-evidence arose upon-the trial as to whether the contract was with Mr. Braker personally or with the International Sanitary Gas Company, Mr. Braker merely standing as a guarantor of the payment. This question was fully developed'by the evidence and was submitted to the jury, and that body has found i'n favor of the plaintiff, holding, in effect,, that the defendant ’ was primarily responsible. While it is true that the plaintiff made some damaging admissions on his cross-exáminations, it was proper for the jury to determine the truth from a.view of all the evidence. . .

The defendant also appeals from an order granting the'plaintiff’s motion to correct the verdict of the jury by adding $215.94 interest to the same. The contract between the parties was for a liquidated sum, the only substantial question being which of two parties was primarily liable for the payment. The court charged that “ to avoid dispute and shorten the trial it is admitted that the amount in question is the sum of $691.10; that is, $475.66, the amount of the bill, and $215.94, the amount of the interest.” And again, “ If plaintiff has made out its case by a preponderance of evidence, which you credit, it is entitled to a verdict of ” $691.10. ISTo exception was taken to this charge, and it became the law of the case, as it is undoubtedly the law generally in reference to actions on contract. The jury, however, ignored the' charge of the court and brought in a verdict for the sum. of $475.66, the amount of the original contract, without interest, and then stated to the court that it was their purpose to render a verdict only for the claim without interest. Plaintiff’s attorney moved the court to correct the verdict by adding the amount of the'interest, in harmony with the charge, but this motion was denied, and an exception was taken to the denial. Subsequently'the plaintiff moved without leave at Special Term "for the same relief which had been denied at the trial, and the motion having been granted the defendant urges that it constitutes error requiring a reversal. Such is our conclusion. When the jury failed to obey the direction of the court by declining to include interest upon the liquidated demand found due the plaintiff, it became the duty of the court upon or even without request to direct them to correct their verdict in accord with the directions thus given. Such is the settled 'practice in this State and should be followed. In case the court.refused to .give imperative directions as here pointed out' the aggrieved party could have ample protection by exception. In this case no mistake was made by the jury. It returned a verdict in direct opposition to the instructions given them by the court and so informed the court. Under such circumstances the Special Term was powerless to grant the order amending the verdict whatever may be said of the authority of the trial judge to interfere with the verdict rendered in the presence of the jury.

■ The judgment should be modified by deducting therefrom, as of the date of its entry, the sum of $215.94, and as thus modified affirmed. The order denying the motion for a new trial should be affirmed, with costs, and the order correcting the verdict reversed, with ten dollars costs and disburséments to the appellant. •

Patterson, P. J., Ingraham, McLaughlin and Clarke," JJ., concurred.

' Judgment modified as directed' in opinion and as thus modified affirmed. Order denying motion for new trial affirmed, with costs. Order correcting verdict reversed, with ten dollars costs and disbursements to appellant. ' Settle order on notice. ■

Upon a motion for a reargument:

Per Curiam :

In the preceding opinion it was inadvertently stated that the motion to correct the verdict was made at Special Term, when in fact the motion seems to have been made at the Trial Term at which the action was tried.. The order was reversed, not because of the particular court-that granted the motion, but because the verdict of the jury had been rendered .and received in- which they refused to obey the direction of the court and find for the full amount to which the plaintiff was'entitled, and the jury discharged before the motion to correct the verdict was made, ■ In such a case the rule allowing the court to correct the verdict where by mistake it was for the wrong amount is not applicable. The .plaintiff appears to have made-no motion to set aside the verdict and' for a new trial, and while as stated in the opinion the court could have directed the jury to correct their verdict before it. had been received and enforce such direction, 'the court could not, under the guise of correcting a verdict, substitute its verdict for that of the jury after the verdict had been received and the jury discharged. . .

The motion for a reargument should, be denied, with ten dollars costs. , "

Present — Patterson, P. J., Ingraham, McLaughlin,. Clarke and Lambert, JJ. . ' ’ .

Motion for reárgument denied, with ten.dollars costs.