The verdict in this case was wholly unexpected by the court. I assumed that the jury would find in favor of the equitable plaintiff for some amount, and that the legal question — whether there was any evidence at all to go to the jury in support of his claim — could then be determined upon considering further the reservation of the defendants’ first point. As it has turned out, however, it would have been better if I had given the instruction in so many words that the plaintiff was entitled to a verdict, leaving the amount only to be determined by the jury. The sole reason for not taking this course was because I did not see how a verdict against him could be rendered; aftd it seemed, therefore, that a formal submission could do no harm. But, as now appears, the submission did do harm, for the unlooked-for verdict has put the record in a condition that cannot be defended.
For obvious reasons, the motion for judgment in favor of the plaintiff notwithstanding the verdict cannot be granted, and is now refused ; but the motion for a new trial must prevail.