254 F. 284 | 8th Cir. | 1918
“Gentlemen of the .jury, it is believed by counsel for each of the parties, and also by the court, that your verdict Is inconsistent, so much so that it cannot stand. Your verdict involves the necessary implication that you find that the defendant broke the contract, hut it refuses to allow anything more than merely nominal damages; whereas, there is no controversy whatever in the case as to the approximate amount of that damage, and under these facts appearing from the evidence in this case, if you find that the defendant broke the contract, then the plaintiff is entitled to substantial damages. If, on the other hand, you find that the defendant did not break the contract, then the plaintiff is not entitled to any damages at all — not even $1. It is true that*286 under the instructions of the court both of these subjects and questions of law were left to you — that is, whether or not the contract was broken, and also the amount of damage. Those questions still remain with you, and are the questions for you to consider when you go back to the jury room. If the contract was broken as charged, I repeat, then the plaintiff is entitled to more than $1 damages, under the uncontradicted evidence; if the defendant did not break the contract, then the plaintiff is not entitled to any damages— not even $1, and your verdict must be consistent in that respect, so the bailiff will hand you this form of verdict, and you will retire to further consider.”
There was no exception to this charge by either party. In the original charge the court stated the items of damage which the plaintiff claimed, and also stated the total amount to be $13,017, irrespective of the item of $1,259. In the supplemental charge the court stated that there was no controversy whatever in the case as to the approximate amount of plaintiff’s damages, if the defendant broke the contract. This statement was true. The damages according to the evidence of the plaintiff amounted to $13,017. Conceding all that the defendant claimed on the question of damages, théy amounted to $11,317.30. The jury returned a second verdict in favor of plaintiff for the sum of $1,259, as directed, and fixed the damages for future profits at $500. In explanation of the amount allowed for future profits, we are referred by counsel to a telegram sent by Mr. Clayton D. Lee, formerly vice president of the plaintiff, to the defendant, which reads as follows:
“New York, February 10, Mr. F. G. Bonfils, Care tbe Kansas City Post, Kansas City, Missouri. Our Kansas City manager reports that you have served notice on him that bureau space and proofs will be refused United Press after Sunday unless your request for a discontinuance of our day service is granted refusal of access and news will be plain breach of your contract damage to us will be not less than five hundred dollars. Our contract made in good faith will be protected.”
This telegram was sent long before this suit was commenced, and was simply the opinion of the sender of 'what damages would be suffered in regard to the items referred to in the telegram. The statement that plaintiff’s damages would not be less than $500 in no way estopped the plaintiff from showing that they were much more. If this telegram had been the only evidence in the case on the question of damages, it would not have supported a verdict for the plaintiff in any sum whatever. Neither can the telegram be used to reduce the damages actually proven to the sum of $500. On the evidence the last verdict was just as inconsistent as the first.
It is our opinion that the trial judge, being an integral part of the court charged with the duty and responsibility of seeing that justice was administered between the parties, should have granted a new trial, and that his failure so to do was an abuse of his discretion. The jury not only disregarded the undisputed evidence in the case, but also the charge of the court.
For the error in refusing to grant a new trial, the judgment below is reversed, and a new trial ordered.