93 N.J.L. 353 | N.J. | 1919
The opinion of the court was delivered by
The trial of this case, at the Atlantic Circuit, resulted in a verdict for the plaintiff for $450,452. The defendant obtained the rule to show cause, reserving all the exceptions taken throughout the trial. The reasons assigned for a new trial by the defendant are that the verdict is against the clear weight of the evidence, that it is contrary to and inconsistent with the charge of the court, the issues raised by the pleadings and the evidence produced in'support of the issues. Also that it is tire result of prejudice or passion.
The' purpose of the suit was to recover commissions alleged to have been agreed to be paid to the plaintiff by the defendant for procuring the sale of nine hundred and forty-one thousand shares of the common stock of tire Pure Oil Com-' pany, a New Jersey corporation. The contract for such commissions is alleged to have been made on or about the 20th day of March, 1916, at the city of Pittsburgh, in the State of Pemrsjdvamia. The contract was not in writing. The compensation for such service was to be the sum of one dollar
The plaintiff denies this and testifies that Jennings, the defendant, wanted him to revive it, i. e., the negotiations, which he did, “and for me to keep my ear close to the ground and see what was going on and keep, it going,” which I did. 'He saw Mr. Martin, of William A. Bead & Company, the next day; “he told me several times later that things were moving along.” On cross-examination, after being shown Jennings’
The next question is, Was the plaintiff Queen the efficient' or procuring cause of the sale of the stock? The legal rule applicable to the facts is well and firmly settled.
The duty which an agent undertakes, the obligation he as-' sumes as a condition of his right to demand commissions, is to bring the buyer and seller to an agreement. The agent must be fire procuring or efficient cause of the sale. Vreeland v. Vetterlein, 33 N. J. L. 247; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; 19 Cyc. 257; 9 C. J. 613; 4 R. C. L. 298; ¶ 42.
Most of the testimony at the trial was directed at this point; The ease took five days for trial; the record consists of a bulky volume of five hundred and fift}r-six pages. The plaintiffs’ exhibits are one hundred and forty-three, mostly letters and telegrams. The controversy is not so much over disputed facts as the correct conclusion to be drawn from admitted or conceded facts'. Thus, the contract b}r which the shares of stock of the Pure Oil Company was sold was in writing. It was put in evidence by the plaintiff. It is not disputed that the final negotiations for the sale were made by Norton H. Weber, the vice president and treasurer of the Pure Oil Company, and Mr. B. G. Daws, of the Ohio Cities
Chief Justice Beasley said, in the case of Vreeland v. Vetterlein, 33 N. J. L. 249, when there is real doubt upon that point, such doubt must be solved by the jury; when the question appears by the evidence to he disputed, the question of the person with whom a contract was made should be left to the jury. Diament v. Colloty, 66 Id. 295; Longstreth v.
The court should not set a verdict aside, even, although, in its opinion the jury might, upon the evidence, have found otherwise. Knickerbocker Ice Co. v. Anderson, 31 N. J. L. 333. To justify the setting aside of a verdict, as against the weight of evidence, it must be so clear as to give rise to an inference that it was the result of mistake, passion or prejudice. Floersch v. Donnell, 82 Id. 357.
After the verdict was found by the jury, complaint was made to the trial court that the jury had been improperly influenced by the constable in charge of the jury. This complaint was investigated by the prosecutor of the pleas of Atlantic count}'', at the request of the trial court; each of the jurors- was sworn and the testimony taken down and transmitted to the court, which has been returned with the record of the case to this court, on which a reason is based for a new trial. We have examined this testimony and find nothing therein which justifies the allegation that the jury was influenced by the constable in charge in reaching a verdict. While the action of the constable in charge was highly improper we cannot say that' it in anywise influenced the jury in reaching the verdict.
This subject .was discussed by this court in the case of Hutchinson v. Consumers Coal Co., 36 N. J. L. 24, where it was said: Affidavits of jurors, when offered for the purpose of contradicting or destroying the verdict have been regarded always by this court, as against the policy of the law and on that ground have been invariably rejected, such testimony should be excluded on grounds of public policy. ■ The affidavit of a juror will not be received for the purpose of impugning or destroying the verdict in which he has joined, or of proving the ground of the verdict. Lindauer v. Teeter, 41 Id. 255, 259. Of course, misconduct on either the part of the jury or the
The verdict was for the plaintiff for $450,452, at the rate of fifty cents a share. The plaintiff alleged the contract was one dollar a share, and so testified. The defendant, claimed the contract was only twenty-five cents a share, and so testified. Nobody claimed that it was fifty cents a share. There are only two references in the testimony to fifty cents a, share. The trial judge submitted to the jury to, determine whether the contract for compensation was one dollar per share or twenty-five cents per share. The amount of the verdict was therefore contrary to and inconsistent with the issue raised by the pleadings — contrary to and inconsistent with the evidence produced in support of the issue made by the pleadings and also with the charge of the court.
A verdict cannot be supported upon a theory of the law contrary to that upon which the case was submitted to the jury. Sensfelder v. Stokes, 69 N. J. L. 86; Cook v. American, &c., Gunpowder Co., 70 Id. 65. The evidence must show a case within the legal rules upon which, the court submits the case to the jury. Bowlby v. Town of Phillipsburg, 83 Id. 377. That the verdict must be supported by the evidence is elementary. But under the Practice act (Pamph. L. 1912, p. 397, ¶¶ 72, 73) a new trial shall only be granted of the question or questions, with respect to which the verdict or decision is found to be wrong, if separable of when the new trial is ordered, because the damages are excessive or inadequate, and for no other reason, the verdict shall be set aside only in respect of the damages, and shall stand good in all other respects. This case is within the provisions of that act. Young v. Society, &c., of Verona, 91 N. J. L. 310.
The only question with respect to which the verdict is found to be wrong is the measure of damages. The rule will be discharged as, to liability; a new trial will be granted, but limited to the question of damages only; the verdict shall stand good in all other respects.