128 N.W. 1035 | N.D. | 1910
Lead Opinion
The Vermont Building Company was a corporation of the state of Iowa. The capital stock consisted of $60,000 common stock, and $35,000 preferred stock. Appellant owned $18,000 par value of the preferred stock and $59,100 par value of the common stock. The balance of the preferred stock, $11,000 par value, was owned by residents of Iowa, Vermont, and New York. Appellant was a resident of the state of New York. One of the purposes for which the corporation was promoted was the construction of a Masonic Block in the city of Sioux City, Iowa. In September, 1904, the sole property of the Vermont Building Company was an equity of redemption in the Masonic Block, and about $14,000 in money, in the possession of the treasurer in Sioux City. A mortgage on the Masonic Block had been foreclosed, and the year of redemption would expire about November 1, 1904. No redemption was made. Appellant and S. L.
Sept. 16, To services investigting matter of Honsinger’s salary as president of Vermont Building Company and advice regarding same .................................. $50.00
Sept. 16, To counsel and advice regarding claim of Farmers’. Trust Co. v. Vermont Building Co. etc................ 100.00
Sept. 16, To counsel and advice regarding priority of preferred stock held by Honsinger ..................... 100.00
Sept. 17, To services searching records, etc., regarding suit of G. H. Hollister v. Vermont Building Co. ........... 50.00
Sept. 25, To services in investigating status of preferred stock of Vermont Building Co.....,...........'...... 100.00
Oct. 27, To services regarding redemption of Masonic Block from sheriff’s sale ..............................• 100.00
Oct. 30, To services in attempting sale of Masonic Block and of Honsinger’s stock in Vermont Building Co.......... 100.00
Dec. 19, To services examining records, etc., in Federal Court in case of Kent v. Honsinger et al............... 50.00
Dec. 22, To services in Kent v. Honsinger et al......... 50.00
1905.
Feb. 4, To services preparing application for permission to intervene in Kent v. Honsinger...................,.. 50.00
Feb. 4, To services preparing motion to dismiss action in ■ Kent v. Honsinger et al............................ 50.00
June 1, To services preparing brief and examining authorities in Kent v. Honsinger et al. . ,................... p 100.00
June 3, To argument on motion to dismiss action in Kent v. Honsinger et al................................ 200.00
July 20, To services in case of Hellister, Receiver, v. Vermont Building Company, McKenzie, Intervener, at request of Honsinger ..................... 25.00
Sept. 11, To services in court and elsewhere in Kent v. Honsinger .................................. 25.00
Sept. 14, To general services attending annual meeting of stockholders of Vermont Building Company, etc........ 50.00
$1,200.00
Appellant assigns numerous errors on the admission and rejection of testimony, and on the refusal of the court to give to the jury the instructions requested by him. The order of the trial court, reducing the amount of the verdict $400, does not recite upon what ground it was made, nor that any items sued upon were stricken out in making the reduction, because they were not supported by the evidence. Appellant strenuously contends that the evidence is insufficient to justify the verdict, and that the damages are excessive, appearing to have been given under the influence of passion or prejudice, and that •it will not do for the trial judge to reduce the verdict to what he believed the jury should have found; that would be substituting his judgment for that of the jury.
That the court has the power to require a remittitur in a proper case is now the settled doctrine in this state. Ross v. Robertson, 12 N. D. 27, 94 N. W. 765; Aronson v. Oppegard, 16 N. D. 595, 114 N. W. 377; Galvin v. Tibbs, H. & Co. 17 N. D. 600, 119 N. W. 39.
Upon the main question in the case, as to whether there was an employment, the parties were directly in dispute, and the jury were at liberty to believe whichever they chose. There was some evidence to support the conclusion reached, and, independent of other considerations, we might not be disposed to set aside their conclusion. Upon
It is claimed that the court erred in refusing the instructions requested by the defendant. After a careful consideration it is our opinion that there is no reversible error in refusing the instructions.
On the trial counsel for plaintiff examined appellant as to matters that were irrelevant to the issue, but having a tendency to create a bad impression against him. Appellant was called for cross-examination under the statute, sworn and examined as a witness, and testified: “I live in West Chazey, New York, and have lived there during all the time covered by Mr. Lohr’s testimony; I was in Iowa in 1904, the last time in September of that year. I am familiar with the affairs of the Vermont Building Company; I am the owner of a majority of the preferred stock, and was in 1904 and 1905; there was $35,000 preferred stock in the company. I owned $18,000 some odd, I couldn’t give it exact. The balance of the preferred stock of the Vermont Building Company, being a minority, was owned by different persons, some reside in New York, and I presume some in Iowa, and some of them in Vermont. All of them put together did not own as large a block of the preferred stock as I did. There was $60,000 in common stock; the total capitalization was $95,000. A. H. Hazen and F. W. Dwinnell were the principal movers in the organization of the company; I became interested after the organization, through F. W. Dwinnell; also talked with Hazen about it. If I remember rightly, I own 597 shares of the common stock, par value, that would be $59,000; I didn’t pay $59,700 for it.”
He was then asked the following questions: “How much did you pay for the common stock of the company?” Appellant’s counsel objected to the question as incompetent, irrelevant, and immaterial. The objection was overruled. Appellant answered: “$150. I paid $150
We think this testimony objected to, as a whole,- had direct -tendency to inflame the minds of the jury, and create a prejudice against the appellant; and the fact that the trial court thought that the verdict was excessive in the amount of $400 confirms us in the opinion that the verdict in this case does not represent that fair and impartial consideration which should characterize the decision of disputed questions of fact.
As a matter of fact, in-the case of Kent v. Vermont Building Company and Honsinger, in which respondent intervened, a judgment was obtained in the United States circuit court for the northern district of Iowa, dissolving the corporation, and appointing a receiver, and an ancillary action was brought in the United States circuit court for the northern district of New York, based on that judgment, to require the officers of the corporation to turn over to the receiver appointed in the action in Iowa, the funds belonging to the corporation; and the defense was that that judgment was absolutely void for the reason that the United States circuit court for the northern district of Iowa obtained no jurisdiction of the corporation, and the decision of the United States circuit court of the northern district of New York was based upon the fact that the United States circuit for the northern district of Iowa obtained no jurisdiction of the corporation, and therefore the judgment in Iowa was absolutely void. Hence, plaintiff’s conclusion of what would be the result of the appointment of a receiver in the Kent action was wrong.
Dissenting Opinion
(dissenting). It may be that the cross-examination set forth in the majority opinion had a tendency to create prejudice in the minds of the jurors, but that is not the question before us. If it was proper cross-examination, the fact that it had that effect on the jury is not any reason for setting aside the verdict. If conceded to be improper cross-examination, that does not necessarily result in a new trial. The question in that case would be, Does the verdict show that the cross-examination had the result of creating passion or prejudice in the minds of the jury, growing out of such cross-examination ?
I do not think the cross-examination improper or prejudicial. It had a direct bearing on plaintiff’s employment, and whether, and to what extent, the services were beneficial, and the interest of the appellant in the services rendered by the plaintiff. On this appeal the question is whether the verdict was excessive after the trial court ordered that plaintiff must remit $400 or a new trial would be- granted. The amount of the recovery as it now stands does nor seem to me excessive, in view of the necessary finding of the jury that defendant employed the plaintiff, and that the services shown by the evidence were actually rendered. It does not appear clearly excessive, which is the only test in this court.
I therefore respectfully dissent from the conclusion reached by the court.