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Co. (1921) 27 Ga. App. 704, 109 S. E. Blakely v. Miller (1914) 180 Mo. App. 694; Paulk v. South Georgia Bldg. & 389, 167 S. W. 1136; Cabool Nat. Bank Invest. Co. (1922) 152 Ga. 646, 111 v. McDowell (1914) 184 Mo. App. S. E. 26; O'Quinn v. Edmondson 567, 170 S. W. 682; Kelley v. Peeples (1922) 28 Ga. App. 351, 111 S. E. 583; (1916) 192 Mo. App. 435, 182 S. W. Farm Products Co. v. Eubanks (1923) 809; Rabok Mfg. Co. v. Agricultural 29 Ga. App. 604, 116 S. E. 327.

Ins. Co. (1922) 212 Mo. App. 600, Illinois. Reid v. Houston (1886) 236 S. W. 916, writ of certiorari 20 Ill. App. 48; Fries v. Fagan (1887) quashed in (1923) - Mo. – 254 S. 23 Ill. App. 613; Wright v. Griffey W. 194. (1892) 44 Ill. App. 115; McKinzie v. Montana. McDonald v. Klenze Stretch (1894) 53 Ill. App. 184; (1916) 52 Mont. 142, 157 Pac. 175. Durham v. Evans (1894) 56 Ill. App. Nebraska. Ackerman v. Bryan 513; Coutrakon v. Passow & Sons (1891) 33 Neb, 515, 50 N. W. 435. (1914) 193 Ill. App. 447; Central Nevada, Allen v. Reilly (1880) Trust Co. v. Kuglin (1915) 194 Ill. 15 Nev. 452. App. 294; Erickson v. Weinberger New York. Wolf v. Goodhue F. (1915) 194 Ill. App. 444; Shaffer v. Ins. Co. (1864) 43 Barb. 400, affirmed Natoma Farm (1915) 195 Ill. App. in (1869) 41 N. Y. 620; Harton v. 97; Nathan v. Brown (1916) 197 Ill. Bloom (1871) 1 Jones & S. 115; App. 533.

Zimmerman v. National S. S. Co. Indiana.-Lighty v. Overbay (1868) (1877) 10 Jones & S. 539; Scheider 29 Ind. 433; Fischer v. Holmes (1890) V. Corby (1878) 15 Hun, 493; 123 Ind. 525, 24 N. E. 377; Noftsger Cass v. Pride (1887) 9 N. Y. S. R. v. Smith (1892) 6 Ind. App. 54, 32 513; Lamberty v. Roberts (1890) 31 N. E. 1024; Evans v. Koons (1894) 10 N. Y. S. R. 148, 9 N. Y. Supp. 607; Ind. App. 603, 38 N. E. 350; Amer- Kelly v. Forty-second Street R. Co. ican Food Co. v. Halstead (1905) (1900) 48 App. Div. 627, 62 N. Y. 165 Ind. 633, 76 N. E. 251; National Supp. 650; Hogan v. Rosenthal (1908) Live Stock Ins. Co. v. Cramer (1916) 127 App. Div. 312, 111 N. Y. Supp. 63 Ind. App. 211, 114 N. E. 427. 676; Pearlberg v. Levisohn (1920) 112 Maine. - Doherty v. Hughes (1921)

( Misc. 95, 182 N. Y. Supp. 615; Kelly 120 Me. 552, 114 Atl. 31.

v. Utica F. Ins. Co. (1922) 203 App. Maryland.-Eyler v. Hoover (1855) Div. 335, 196 N. Y. Supp. 795. 8 Md. 1.

Oklahoma. Harding v. Gillett Massachusetts.

McMillan (1909) 25 Okla. 199, 107 Pac. 665; Wickstrom (1923) 244 Mass. 159, 138 Dunning v. Studt (1915) 51 Okla. N. E. 253.

388, 151 Pac. 1066. Michigan. Benedict v. Michigan Pennsylvania. Coyle v. Gorman Beef & Provision Co. (1898) 115 (1852) 1 Phila. 326; Seiler v. New Mich. 527, 73 N. W. 802; Big Rapids York Ice Cream & Creameries (1918) Nat. Bank v. Peters (1899) 120 Mich. 71 Pa. Super. Ct. 32. 518, 79 N. W. 891; Stretch v. Stretch South Carolina. Seymour & Co. (1916) 191 Mich. 416, 158 N. W. v. Perry (1922) 118 S. C. 265, 110 185.

S. E. 389. Minnesota. — Westlund-Westerberg

South Dakota. Rudolph v. Hewitt Lumber Co. v. Lindsay (1918) 140 (1899) 11 S. D. 646, 80 N. W. 133. Minn, 518, 168 N. W. 96.

Texas.-Wilber v. Kray (1889) 73 Missouri.—Alderman v. Cox (1881) Tex. 533, 11 S. W. 540; Corbett v. 74 Mo. 78; N. K. Fairbank Co. v. Sayers (1902) 29 Tex. Civ. App. 68, Belcher Cotton Oil Co. (1899) 81 69 S. W. 108; Smith v. Railroad EmMo. App. 523; Harrison v. Murphy ployees Co. (1917) Tex. Civ. App. (1904) 106 Mo. App. 465, 80 S. W. 724; 195 S. W. 220; Daniels v. Garrett Crigler v. Duncan (1906) 121 Mo. (1922) Tex. Civ. App.

239 S. App. 381, 99 S. W. 61; Western States W. 1118. Portland Cement Co. v. Bruce (1912) Utah. Alder v. Crosier (1917) 160 Mo. App. 246, 142 S. W. 783; 50 Utah, 437, 168 Pac. 83.


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Virginia. - Newport News & O. Pt. the full amount of damages shown R. & Electric Co. v. Bickford (1906) and justified by a breach of the con105 Va. 182, 52 S. E. 1011.

tract alleged and proved. The deWashington. – Seattle Brewing & fendant urged as error the fact that Malting Co. V. Donofrio (1904) 34 the verdict for the plaintiff should Wash, 18, 74 Pac. 823; Meador v. have been larger, but the court denied Northwestern Gas & E. Co. (1909) 55 the ground of error and stated the Wash. 47, 103 Pac. 1107; Cormier v. rule as follows: “The verdict was Martin Lumber Co. (1917) 98 Wash. for less than it might have been, and 463, 167 Pac. 1105; Lagomarsino v. the motion for a new trial suggests Pacific Alaska Nav. Co. (1918) 100 that it should have been more or Wash. 105, 170 Pac. 368; Nevins v. nothing. That it was for something Scace (1921) 116 Wash, 215, 199 Pac. shows that the jury believed the facts 305.

were so far with the plaintiff as to West Virginia. - Thayer v. Holley entitle him to maintain his action. (1922) 90 W. Va. 525, 111 S. E. 326. The defendant certainly has no right

Wisconsin. Lee v. Merrick (1858) to a new trial because the verdict was 8 Wis. 229; Bammessel v. Brewers' too small." F. Ins. Co. (1877) 43 Wis. 463.

In Cormier v. Martin Lumber Co. Wyoming. - Bolln v. Metcalf (1895) (1917) 98 Wash. 463, 167 Pac. 1105, 6 Wyo. 1, 71 Am. St. Rep. 898, 42 Pac. the respondent brought action against 12, 44 Pac. 694.

the appellant to recover for wages "That the appellee did not recover due, amounting to a total of $1,090. more than a moderate percentage of. The evidence on the trial was conwhat he claimed is a cause of com- flicting in reference to the real intent plaint for him only. The appellant of the parties. The jury found for is not entitled to a new trial on the $491.95 in favor of the respondent. ground that the appellee ought to Error was assigned by the appellant have recovered more or nothing." on the ground that the verdict was Wright v. Griffey (1892) 44 Ill. App. too small if the respondent was en115, affirmed in (1893) 146 Ill. 394, titled to a recovery. The court disal34 N. E. 941.

lowed the claim and declared the The following rule was declared in foregoing rule. Alderman v. Cox (1881) 74 Mo. 78: The ground of inadequacy of the “The defendant has no ground of verdict was offered by the defendant complaint because the jury found a in Coyle v. Gorman (1852) 1 Phila. verdict for plaintiff for just one half (Pa.) 326, an action for breach of of the amount the latter claimed was contract of employment. The court due him, notwithstanding the evidence said: “The jury found, it seems, as to the amount due him was uncon- at the rate of $8 a month, and the tradicted. The defendant cannot be objection is that it is, on its face, a said to have been injured because compromise verdict. We cannot say compelled by the verdict to pay a less that there is anything so inconsistent sum than he contracted to pay.” in this verdict as to justify us in b. Unliquidated claim.

disturbing it. Had the jury found Express eontract.

$10 a month, we could not consistentWhere action is brought on an ex

ly have interfered. If they believed press contract to recover unliquidated

the testimony of the plaintiff, they damages for the breach thereof, the might well have done so; that they appellant cannot complain that the chose to reconcile their differences by verdict rendered against him is less

a compromise was for their conthan the evidence warrants.

science, not ours, if the verdict violatThe rule was applied in Roberts v.

ed no rule of law, and had evidence Rigden (1888) 81 Ga. 440, 7 S. E. sufficient to support that or a still 742, an action to recover damages for greater verdict." the breach of an express contract of And similarly, in Fries v. Fagan employment. The jury failed to allow (1887) 23 Ill. App. 613, the action was

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brought to recover for the breach of tainly does not appear in this case a contract of employment, and the

that the verdict was the regeneral rule was applied. It appeared sult of a compromise." in the record that the plaintiff pro- A similar rule was stated in Seiler duced evidence on the trial tending v. New York Ice Cream & Creameries to fix the damages at $2,252, but the (1918) 71 Pa. Super. Ct. 32, an action jury found for only $550. The de- to recover for breach of an alleged fendant objected to the verdict on the contract of employment, the court ground that the comparatively small saying: “The failure to give all the verdict indicated that a majority of damages warranted by the evidence the jurors were in favor of no re- an injury to the plaintiff, of covery, but had been induced to ren- which the defendant has no right to der a compromise verdict. The court complain." held that the defendant could not The case of Powers County v. Bedell complain, although the jury would (1899) 13 Colo. App. 261, 57 Pac. 187, have been justified in finding a was an action by a county physician larger amount for the plaintiff from to recover on a contract for services. the evidence.

On appeal, the defendant objected to The inadequacy of the plaintiff's the inadequacy of the verdict, and verdict was urged as ground of error the court stated the rule in the followin Benedict v. Michigan Beef & Provi- ing language: “The jury for some gion Co. (1898) 115 Mich. 527, 73 N. reason awarded plaintiff a less W. 802, an action to recover damages amount than he claimed, and less than for the breach of an express con- the salary for three months would tract of employment. Evidence was have amounted to, but this is a matter introduced to show that the damages of which the defendant is not entitled amounted to $588.83. No evidence to complain." appeared which conflicted with this In Brandt v. Computing Cloth amount. The jury brought in a ver- Measuring Mach, Co. (1921) 27 Ga. dict for $398.77. The court said: App. 704, 109 S. E. 694, an action for "The principal question presented breach of contract to perfect an inin this case is whether the verdict vention, the court said: “The evirendered should be set aside on the dence is clearly sufficient to support a ground that it is a compromise ver- verdict for $2,000 against the defenddict. There is no doubt that, where ant. The fact that the jury found the record is such as to make it clear a verdict for $1,500, with interest, is that the jury have reached the re- not a matter of which the defendant sult by 'splitting differences,' neither

can complain, in view of the party has had the benefit of their fact that, under the evidence, a verjudgment, and such verdict ought not dict for $2,000 would have been amply to be permitted to stand. ... But supported by the evidence.” this is quite a different proposition In Durham v. Evans (1894) 56 Ill. than the one suggested by the facts App. 513, it appeared that the appelof this case, which is that, because the lant agreed to pay the appellee one jury gave a verdict for a less sum half of all he made over a certain than the plaintiff's testimony showed figure in selling real estate, if the him entitled to, the defendant has appellee would use his best efforts the right to complain, and to insist in the business. The jury awarded a that the verdict was reached as verdict of $740 in favor of the appelcompromise. The inference is not lee. The appellant contended that in a necessary one from the premises. view of the evidence the appellee The verdict for the less amount may should have recovered $1,930 or nothhave been the result of a mistake in ing. The court said that the verdict computation, or it may have been that should have been higher, but that the the jury, on their own judgment, con- appellant could not complain. sidered portions of plaintiff's testi- In Ray V. Hutchinson (1921) 27 mony inherently improbable. It cer- Ga. App. 448, 108 S. E. 815, the evi



dence showed a written contract The total commissions at that rate whereby the defendant agreed to pay amounted to $1,500. It was held a brokerage fee of $500 if the plaintiff that the defendants could not take sold certain real estate, or a reason- advantage of the inadequacy, the court able commission if the property was saying: “If the verdict be erroneous sold to anyone whom the plaintiff had simply on the ground that it is for negotiated with. In an action to re- a less sum against defendants than cover $500 on the contract for pro- was warranted by the evidence, curing a party ready and willing to such error cannot be said to be one purchase the real estate, a verdict of affecting their substantial rights. $250 was returned. It was held that Hence, the judgment should not be the inadequacy of the verdict could reversed merely on the ground of not be objected to by the defendant.

such error. . . The plaintiff beThe rule was applied in Thayer v. low was the only party prejudiced by Holley (1922) 90 W. Va. 525, 111 S. the insufficiency of the damages E. 326, an action for commissions, awarded, and he is not complaining the court saying: "The amount of the on this appeal.” verdict is exactly 5 per cent of the A similar decision was handed net price stipulated to be paid de- down in Stiewel v. Lally (1909) 89 fendant for the timber. It is possible Ark. 195, 115 S. W. 1134, an action the jury may have concluded that to recover commissions alleged to be under the circumstances this sum due on the sale of a coal mine under would sufficiently compensate the written contract. The record plaintiff. But we cannot say this was showed that the plaintiffs claimed the basis of their verdict. On the $100,000, but the jury rendered a vercontrary, they might have found the dict for $9,700. On appeal the defull amount claimed by plaintiff. fendant complained that the inadeThat they found a less sum defend- quacy of the plaintiffs' verdict was ant cannot complain, and plaintiff error. The court said: “The amount does not complain of the verdict. In of the verdict is for a less sum than such a case this court will not be appellees were entitled to under the justified in disturbing the verdict.” instructions, if they were entitled to

The appellant in Sutro v. Easton a verdict at all, but appellant cannot (1900) 130 Cal. 339, 62 Pac. 558, com- complain of this. The jury were plained that the jury rendered a ver- doubtless influenced to find for the dict against him for an amount less smaller sum, because one of appellees than was warranted by the evidence. expressed, in a letter written to apIt appeared that a verdict for one pellant after the consummation of half of certain commissions earned the sale, his willingness to accept a would have been warranted by the commission of 23 per cent on the purcontentions of the appellee, although chase price. But, as we have said, the verdict fixing the share at one appellant cannot complain of this third was in harmony with the evi- leniency shown him by the jury." dence introduced by the appellant. It was held in Wofford v. De Queen It was held that the appellant could Real Estate Co. (1919) 141 Ark. 310, not complain that the jury based the 216 S. W. 710, that the appellant verdict on the theory most favorable could not complain that the appellees to him, and that there was no error were entitled to $1,500 in commisto warrant a new trial.

sions, instead of only $400. In Gaynor v. Clements (1891) 16 In Wolf v. Goodhue F. Ins. Co. Colo. 209, 26 Pac. 324, the defendants (1864) 43 Barb. (N. Y.) 400, affirmed contended that the verdict for $1,000 in (1865) 41 N. Y. 620, an action was inconsistent with the evidence in brought to recover on a fire insurance any proper view. It appeared that the policy, it appeared that the prelimidefendants, by

express contract, nary proofs of loss alleged the loss to agreed to pay the plaintiff a commis- be $3,041.36. The defendant's proof sion of 5 per cent for selling horses. tended to show that the statement


was fraudulent and did not entitle (1904) 106 Mo. App. 465, 80 S. W. the plaintiff to a recovery. The ver- 724, an action on an express contract: dict rendered was in the sum of “The plaintiff, under the instructions $412.27. The defendant claimed that and the evidence, might have resuch a small verdict showed the is- covered $300 instead of $200, yet we sue settled in its favor, and that the cannot say that it necessarily follows amount was the result of compromise. that the finding was based on quanThe court held that there was no com- tum meruit and unauthorized. The promise, and that the defendant could plaintiff, and not the defendants, can not complain of the inadequacy of complain that the verdict was against the plaintiff's verdict.

them for a less amount than the Kelly v. Utica F. Ins. Co. (1922) 203 pleadings and evidence authorized." App. Div. 335, 196 N. Y. Supp. 795, "If the court by mistake or error supports the doctrine that an appel- rendered a judgment based upon a lant cannot complain of the fact that lesser quantity [of sales], it insured the verdict against him is too small. to the benefit of the appellant, and The action was brought to recover on cannot be reversed at appellant's ina fire insurance policy. The evidence stance.” N. K. Fairbank Co. v. would have justified fixing the fire Belcher Cotton Oil Co. (1899) 81 Mo. loss at $800, the full amount of the App. 523. policy, but the jury fixed the loss at Where the jury awarded a verdict $500 by its verdict, and it was held of $90 on a claim for $100 arising that the insurer could not complain. an alleged contract to purchase

It was similarly held in Bammessel a certain colt, the court refused to v. Brewers' F. Ins. Co. (1877) 43 Wis. disturb it at the instance of the de463, that the recovery in an action fendant, and stated the rule as folon a fire insurance policy could not lows: “That the amount of the verbe objected to by the insurance com- dict was less than it should have pany on the ground that the evidence been, if any was proper, is no ground entitled the plaintiff to the full for complaint by defendant.” Mcamount of the policy, if he was en- Kinzie v. Stretch (1893) 53 Ill. App. titled to recover at all.

184. The same rule applied in In Seymour & Co. v. Perry (1922) National Live Stock Ins. Co. v. Cramer 118 S. C. 265, 110 S. E. 389, wherein (1916) 63 Ind. App. 211, 114 N. E. 427, it appeared that the verdict was for an action to recover $500, the amount only $500, while the evidence tended of an insurance policy. The plaintiff to prove that the loss from breach received and accepted a verdict for of contract was $1,020, it was held $381.72. On appeal, the defendant that the defendant could not comcomplained of the fact that the verdict plain. was less than the amount to which In Evans v. Koons (1894) 10 Ind. the policy entitled the plaintiff. The App. 603, 38 N. E. 350, the court court said that the appellant was not said: "It is insisted, in argument in a position to object to the lesser by the appellant's counsel, that there verdict, of which the plaintiff failed is no evidence to sustain a verdict to complain.

for $10; that under the evidence the The rule declared in Reid v. Hous- appellee was entitled to recover $25, ton (1886) 20 Ill. App. 48, was that if anything at all, and that, as there the defendant could not be heard to is no basis for a verdict of $10, the assign as error that the amount of latter is contrary to law, and not supdamages assessed against him in an ported by the evidence. In our opinaction on an express contract was ion this argument is not tenable. If too small. The evidence on the trial there was evidence upon which a vertended to show that the plaintiff was dict for $25 could have been upheld, entitled to a recovery of $531.69. The it is not within the appellant's power jury returned a verdict for $375. to claim that the verdict was not for

It was said in Harrison v. Murphy a sufficiently large amount."


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