This is аn action on a promissory note brought by the payees, citizens of the State of Nevada, against one of five makers, a citizen of the State of Pennsylvania. The statement of claim tersely recites the note, admits sundry payments on account of principal and makes demand for the balance with interest. At the trial the plaintiffs (defеndants in error) proved the note and rested. The defendant (plaintiff in error), by averments of his pleading and later by evidence to support them, raised three questions: Whethеr the transaction out of which the note arose was within the Statute of Frauds; whether the consideration for the note was illusory; and whether it was illegal.
After judgment on verdict for the plaintiffs, the defendant sued out. this writ of error, raising here the same questions tried below and three additional ones. Two of these questions are — whether the trial court erred in аdmitting certain evidence of extraneous transactions between the defendant and outside parties; and whether it erred in striking off a counterclaim set up by the defendаnt.
As there will have to be another trial of this case at which, doubtless, the same questions will arise and again call for rulings by the court,
The subject matter of the assignment- is nowhere better stated than by the learned trial judge when denying the defendant’s motion for a new triаl. He said:
“The jury were instructed that if they found in favor of the plaintiffs, their verdict should be for the balance claimed upon the note, amounting with interest to $56,990.70. Otherwise the verdict should be for the defendant. The jury, in apparent disregard of the instruction of the court, upon some basis of reasoning which is not apparent, rendered a verdict in favor of the plaintiffs in the amount of $27,439.42. The plaintiffs assigned this as one of the reasons for the granting of a new trial but withdrew the motion and were satisfied to accept the amount of the verdict. (The defendant also assigned it as a reason for a new trial.) The fact that the defendant is by the verdict required to pay less than the jury should have found against him is not ,a valid rеason for a new trial upon his part.”
At the-trial, there was no dispute about the amount due on the note. The controversy concerned only the maker’s liability.' There was nеither raised nor submitted to the jury an issue of the amount due. Accordingly, the court instructed the jury, as the law of the case, that their verdict should be*for the. whole of the plaintiffs’ clаim or for nothing. The jury, in actual disregard of the instruction, and without any evidence in the case to support their action, split the claim and rendered a verdict for about one-half. Therefore, the question before us is— Did the trial court err in entering judgment on this verdict?
The law on the subject is not entirely settled. There are three lines of conduct which сourts in this situation follow according as they regard their duty. One is, in an effort to sustain verdicts, courts will be slow to yield to the inference of compromise by juries and will in'dulge all presumptions in favor of the validity of verdicts. Benedict v. Beef & Provision Co.,
We are persuaded by the ratio decidendi of the last line of authorities that a verdict likе the one under consideration, which is perverse and directly violative of the charge of the court and is wholly without evidence to support it, cannot stand. It is not sufficient to say that the defendant cannot complain because he was not injured. He was injured by being deprived of the right of a litigant to have the jury determine his liability under the law as laid down by the court. That liability might be for more than the jury found; yet it might be for nothing. What his liability is, the jury refused to say; but said something else, which, under the law and on the facts, was simply untrue. Therefore, we are of opinion that the verdict was invalid and that the court erred in entering judgment upon it. Whether this error is reversible depends on the next question.
This rule, invariable in its operation, is by its terms applicable where the discretion of the trial court is invoked with reference to a matter open to its exercise. It was conceded in this case that the verdict was opposed to the court’s instruction on the law. Also, there was no questiоn whether the verdict was right or wrong. Admittedly, it was wrong. It did not require the exercise of discretion to arrive at this conclusion. Everyone agreed to it. Therefore, the duty of the cоurt not to enter judgment upon a verdict unlawful because rendered in opposition to its instruction was one of law. United States v. Routt
When the verdict was rendered, the defendant, in order to prevent the entry of judgment thereon, promptly moved for а new trial. This was a motion on his part to set aside the verdict because rendered contrary to the court’s instruction. The motion related not to any action by the cоurt during the trial, either on the facts or on the law, with reference to the outcome of which the trial judge was, on the motion for a new trial, called upon to exercisе discretion. It related to something which happened after the issues of fact had been submitted and decided. This was the rendition of an .-unlawful verdict; that is, a verdict not unlawful on thе issues submitted — with reference to which the discretion of the trial judge would be applicable — but unlawful because rendered on a matter which had not been submitted at all. The mоtion which the defendant made was, in effect, an exception to the verdict for a defect on its face. As this exception called for judicial decision, not for judicial discretion, the defendant did not lose his exception by the refusal of the court to allow it. Having been seasonably made, it was preserved to him by this writ of error, through which he brings here for review not a matter of discretion but a matter solely of law. Peterson v. Patrick,
The judgment below is reversed and a new trial awarded.