85 N.J.L. 351 | N.J. | 1913
Lead Opinion
The opinion of the court was delivered by
Where a jury renders an excessive verdict the court may and frequently does, upon a rule to show cause, put the plaintiff upon terms whereby unless he shall, within a fixed time, remit all above an amount specified by the court, the rule shall be made absolute; otherwise, that is, upon his so remitting, it shall be dismissed. This is an exercise of the equitable power of the court whereby it prevents a miscarriage of justice by thwarting the unjust action of the jury in deliberately rendering a verdict for the excessive amount. What the court does is not for the purpose of carrying out the finding of the jury, but on the contrary, to defeat it in so far as it is unjust.
There is another and very different power of the court, however, the purpose of which, instead of being to defeat the intent of the jury, is, on the contrary, to carry it into effect. That power is the right and duty of the trial court in a case where the verdict of the jury is informal in form or erroneous through mistake, but where the real purpose of the jury sufficiently appears, to mould the verdict as rendered to correspond with the substance of the real verdict as agreed upon by the jury and intended to be rendered. This power and duty are well recognized. Peters v. Fogarty, 26 Vroom 386.
In the ease at bar this distinction is important because of the fact that in fixing the amount of the reduced verdict the learned trial judge included in it the sum of $298.85, interest, which, as he admits and as is perfectly manifest from the circumstances and the admission of the attorneys on both
It is urged, however, that all the elements (an excessive verdict, a rule to show cause, a fixing of the correct amount by the court, a remission of the excess by the plaintiff, and a discharge of the rule) are here present to constitute a valid exercise of the equitable power of the court to reduce an excessive verdict, and as that alone will render complete justice by including the item of interest, to which clearly the plaintiff below was entitled, the action of the learned trial judge should be affirmed as an exercise of such power, even although it was done under the guise of moulding the verdict. The difficulty with this proposition is that a prior duty of the court intervened. It was the first duty of the trial court to see that the true verdict of the jury was recorded, before it gave a thought to the question of whether that verdict was or was not excessive. ’ The moulding of the verdict is only an exercise of this duty. It is a correction of the record of the verdict making it conform to the verdict as actually agreed upon by the jury. The admitted facts establishing, as they did in this case, that the jury had agreed upon a definite verdict and that through, a pure mistake another verdict had been recorded, it became the absolute duty of the court to correct the record so that it would record the real verdict. This could only be done by including just what the jury included and nothing else. It is true that the verdict will then be too small by the item of interest
We think the learned trial judge was right in so moulding the verdict as to correct a pure inadvertent mistake on the part of the jury by reducing the sum found to the sum which the jury-thought they were finding, but that he was in error in adding to this, an item (interest) which admittedly the jury did not intend to include in their verdict.
Error is also assigned to the refusal of the trial court to direct a verdict for the defendant. This direction was asked upon the authority of Van Buskirk v. Board of Education, 49 Vroom 650, where this court upheld a direction of a verdict upon the calculation by the architect, in his final certificate, of liquidated damages for a tardy completion. In that case, however, there was no dispute about the date of completion. That was admitted. The dispute arose about extra time allowances for delays of various kinds, and as to these the contract made the architect the arbiter. In the present case the whole dispute is about the date of actual completion, and the contract does not place the determinatioñ of that date, for the purpose of ascertaining the bonus or liquidated damages, as the case might be, upon the architect.
Another -assignment of the error relates to the admission of an answer to a question, over objection, fixing the time of delay resulting from plumbing trouble with the board of health, at three weeks. The architect had specified hopper toilet closets and they were contrary to the building code and had to be taken out. The evidence would have been entirely proper if followed up by proof of the giving of notice
We do not find merit in the other assignments of error.
The judgment is set aside and the case remanded in order that the verdict may be moulded and corrected in accordance with the views herein expressed.
Dissenting Opinion
(dissenting). The verdict was in excess of the full amount of the plaintiff’s claim and interest. It is manifest that the jury meant to award the plaintiff all he claimed, and under the charge of the judge they were bound io allow interest. T think we ought to presume that they did so and that the excess onty arose from mistake, and we ought not to be governed by what one juror says as to their method of reaching (heir result. The right of the judge to permit the plaintiff to waive the excess rather than submit to a new trial is settled. Mr. Justice Kalisch requests me to say that he concurs in this dissent.
For affirmance — Swayze, Parker, Kaetscii, JJ. 3.
For reversal — The Cittee Justice, Garrison, Mtnturn, Yredenburgh, Congdon, White, Teriiunb, TIbppen-HKIMER, JJ. 8.