46 Mo. 320 | Mo. | 1870
delivered the opinion of the court.
The doctrine contended for by the counsel for the plaintiffs in error, that an entire performance of the whole contract by the
The jury returned a verdict for the plaintiff for the sum of $2,879, whereupon he remitted $1,500, and took judgment for the remainder, $1,379.
The extraordinary verdict of the jury renders it certain that they disregarded the evidence and mistook the law. The question in this case is, will the remittitur cure the error? We think not. As the verdict was for more than the amount demanded in the petition, of course it could not be permitted to stand. By the judgment, after the $1,500 was remitted, a calculation exhibits the fact that the plaintiff got just about
It is unnecessary to remark that had the verdict of the jury been for the $1,800 vre would not have disturbed it, although we might not have been entirely satisfied with the finding ; but as it is, there is no verdict to interfere with, and we have no hesitation in applying the correction. The court should have sustained the motion for a new trial.
I see nothing objectionable in the action of the court in reference to the admission or exclusion of evidence. The counsel have unnecessarily confused the case by drafting and getting instructions which have no bearing upon its merits, and the instruction given by the court of its own motion is not the law as heretofore declared by this court. It might be good in some cases, but is hardly applicable in this. There is but one single issue to be tried, and the law as applying to it is indicated in a prior part of this opinion. As far as enlightening the jury is concerned, one instruction will be found sufficient.
■ Reversed and remanded.