159 Iowa 567 | Iowa | 1913
The defendant handles pianos as jobber and retailer at Cedar Rapids. By written contract he purchased fifteen pianos of plaintiff, who shipped them to Toledo, where the latter undertook to conduct a special sale thereof, and to sell sixty per- cent, of the same. It was to receive for such service ten per cent, of the gross amount of the business done, and defendant was to furnish the board of plaintiff’s salesman, advertising, and other expenses. Pianos were not disposed of as anticipated, and a controversy arose, whereupon this action for the purchase price of the pianos, $1,685, commissions in the sum of $47.50, and expenses amounting to $32.88 was begun aided by attachment. The defendant admitted his liability for the pianos, but put in issue the claims for expenses and commissions, and by way of counterclaim, alleged that the writ of attachment was sued out wrongfully and maliciously, because of which he prayed both actual and exemplary damages. Allowance for certain expenses also was asked. Several errors are assigned, and these may be disposed of in the order argued.
To justify the allowance of this item, it must have appeared, not only that the services were reasonably necessary in securing the release of the levy, but also the reasonable value of such services. Massena Savings Bank v. Garside, 151 Iowa, 168.
It is suggested that these were, matters familiar to the jury, and for this reason proof of value was not essential and Lampman v. Bruning, 120 Iowa, 167, is relied on. There the charge of $10 for attending a patient in confinement was proven, and the reasonable value of the services not shown, and it was said that “such items are rarely the subject of controversy in damage suits, and where the services rendered are of a nature likely to be familiar to the jury, and the charge not questioned, its reasonableness may be safely left .to their determination.” It cannot be assumed that ordinarily jurors are familiar with the charges of attorneys
The affidavit filed was based entirely upon alleged statements of jurors to the affiant, and was hearsay and entitled to no consideration. State v. Tyler, 122 Iowa, 125,; State v. Quinton, 59 Iowa, 362; Grady v. State, 4 Iowa, 461. • There was nothing before the court indicating that any mistake had been made by the jury in the matter of computation. It will be noted that the jury necessarily allowed $1,685 on the petition, and could have allowed no more than $2,296.44 ou the counterclaims. Had the jury awarded the latter amount, the difference would have been but $611.44, or nearly $500 less than the verdict of the jury. Appellee says the jury did not allow all claimed by defendant but could have awarded $1,105 only, but how does he know? Nothing in the record shows how they arrived at the result, though counsel for appellee says it is too plain to permit of quibbles or speculation.
As all the damages awarded on the counterclaims in excess of $296.44 were exemplary, the verdict cannot be cured by remittitur. Ahrens v. Fenton, 138 Iowa, 559. There is no escape from the conclusion that a new trial should have been granted, and the court erred in not doing so. Reversed.