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It was held in Paulk v. South the verdict, being for less than was Georgia Bldg. & Invest. Co. (1922) claimed, constituted error. The court 152 Ga. 646, 111 S. E. 26, that a sure- held that the error, if any, was harmty for the plaintiff could not object less to the defendant, and could not that the verdict awarded single rent, be taken advantage of as a ground and not double rent, to the defend- for a new trial, saying: “The comants on their counterclaim.

plaint, it is true, alleges that the In Daniels v. Garrett (1922) Tex. services were performed, that they Civ. App. - 239 S. W. 1118, an ac- were of the fair and reasonable valtion to recover damages for breach of ue of $324.31, and that the defendant contract to convey real estate, the rec- had promised and agreed to pay; but ord showed that the jury awarded this was not a liquidated claim; it $1,250 instead of the $2,000 claimed did not pretend to be. . The by the plaintiff. The court said: defendant is not aggrieved by the “Appellant cannot take advantage of fact that the jury cut down the claim the fact that the judgment rendered $24.31. It does not show such a against him is for an amount less compromise as to discredit the action than was established by the proof. of the jury. The rule, we believe, is Plaintiff below, who appeals because that the defendant cannot complain of inadequacy of the verdict, is en- because the plaintiff did not recover titled to relief in

proper case, but against him as large a verdict as he not so the defendant."

was entitled to, unless the amount of It was held in Seattle Brewing & the verdict shows that the jury, in Malting Co. v. Donofrio (1904) 34 determining the case, either wholly Wash. 18, 74 Pac. 823, that the de- disregarded the evidence, or misapfendant had no ground of complaint prehended its effect, or overlooked that the plaintiff's recovery for a some important fact, or must have breach of contract was for an amount necessarily found some fact in favor less than the evidence showed was of the defendant which is wholly indue, for the reason that error, to be consistent with a verdict for any available, must be prejudicial to the amount in favor of the plaintiff.” party complaining.

It was contended by the defendant Where it appeared that the jury, in Kawfield Oil Co. v. Braymer Drillfollowing the court's instructions rel- ing Co. (1923) 287 Fed. 713, an acative to the measure of damages, tion in assumpsit on

on a quantum rendered a verdict against the appel- meruit for services rendered in drilllant for an amount much less than the ing an oil well, that the inadequacy contract called for, the holding was of the plaintiff's verdict was error. to the effect that the error was not The evidence showed that the work one of which the appellant could of drilling was worth $7,155, that complain. Corbett v. Sayers (1902) the loss of the rent of tools while 29 Tex. Civ. App. 68, 69 S. W. 108, an the drilling operations were shut action to recover for breach of con- down by the defendant was $1,725, tract to purchase.

and that the work of fishing for the Quantum meruit.

casings put into the well was reasonIn an action on quantum meruit to

ably worth $1,600—making a total recover an unliquidated claim, the par

claim of $10,480. However, the jury ty against whom the verdict is found

rendered a verdict for only $8,158.75, cannot object that it is inadequate

to which the defendant objected. The in amount. Thus, action was brought

decision of the court was to the effect on a quantum meruit in Hogan v.

that, although the evidence would Rosenthal (1908) 127 App. Div. 312,

have sustained a larger verdict, the 111 N. Y. Supp. 676, to recover an

error was in no way prejudicial to unliquidated claim alleged to have the defendant, and therefore not a been $324.31. The jury rendered a matter of which that party could comverdict for $300 in favor of the plain- plain. tiff, and the defendant claimed that In Crigler v. Duncan (1906) 121

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Mo. App. 381, 99 S. W. 61, the defend- stand.

The evidence is exant urged that the judgment should ceedingly conflicting. ... The jury be reversed because the jury returned having found the issues for the plaina verdict for an amount less than that tiff, and made their award at a much to which the evidence showed the less amount than they otherwise plaintiff entitled. The action was might, the result did not prejudice brought to recover money had and the defendant. If the plaintiff is received. The evidence tended to willing to accept it, the defendant show that the amount due the plaintiff ought not to be heard to complain, was $733.33, but the jury fixed the because the advantage is pro tanto recovery at $500. In denying the de- his. It is not infrequently the case fendant's request for a new trial, the that juries return such verdicts as we court distinguished the present case have here. If the party who suffers from cases cited by the appellant, and is willing to abide their action withheld that, the action eing for money out complaint, the complaint of the had and received, and not based other party that there has been a on an express contract, the general mistrial ought not to be heard with rule should be applied, to the effect indulgence." that the defendant could not be heard In Lee v. Merrick (1859) 8 Wis. to complain that the jury fixed the 229, the plaintiff sued to recover for amount of the plaintiff's recovery be- work, labor, and services rendered as low what it should have been.

foreman of the defendants' brickyard. In Alder v. Crosier (1917) 50 Utah, He set up an express contract pro437, 168 Pac. 83, wherein the jury re- viding for compensation at the rate turned a verdict for the value of

of $100 per month. The defendants services rendered in an amount much claimed that their agreement was to less than was due, according to the pay what the services were worth, and only testimony bearing on that issue, that the plaintiff left the employment it was held that the appellant could of his own free will. Evidence was not complain of the inadequacy of also produced tending to show damthe verdict rendered against him, and ages suffered by the defendants, and thereby take advantage of a harmless

part payment of the wages due the error.

plaintiff. The court instructed the Counterclaim, set-offs, partial de- jury that “if they found the defendfenses.

ants agreed to give the plaintiff $100 The courts have held that, where

per month

for his services, they the verdict was manifestly lessened should find for that amount, less what by the allowance of a counterclaim, had been paid him, and if they found set-off, or partial defense, the ap- no special agreement as to the amount pellant cannot complain that the

per month, then they should allow appellee should have received

the plaintiff what his services were larger verdict.

worth, deducting the amount paid, In the case of McDonald v. Klenze

and if they found that the plaintiff (1916) 52 Mont. 142, 157 Pac, 175,

hired out to the defendants for the an action to recover the principal and

brick-making season, and left the eminterest on two promissory notes, the

ploy of the defendants before the defendant introduced evidence which

expiration of the season, without their had the effect of a set-off. On com

consent, that then they should allow plaint of the defendant that the plain

him whatever his services were tiff's verdict should have been for the full amount demanded or noth

worth, after deducting the damages, ing, the court said: “Counsel insist

if any, sustained by the defendants : . that

the plaintiff by reason of his leaving before the ought to have recovered the whole expiration of the season." The jury amount demanded, or nothing, and

rendered a verdict in favor of the hence that the verdict must have been plaintiff for $280. The defendants the result of a compromise, and for claimed that the verdict was wrong. this reason may not be allowed to fully rendered on a quantum meruit

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basis, whereas the action relied on son v. Patrick (1879) 126 Mass. 395; the express contract, and that the Alden v. Sacramento Suburban Fruit plaintiff's verdict was less than was Lands Co. (1917) 137 Minn. 161, 163 due him. The court held that the N. W. 133; H. B. Smith Co. v. Chapin error, if any existed, was injurious (1891) 38 N. Y. S. R. 463, 13 N. Y. to the plaintiff alone, and was not Supp. 799; Fuld v. Kahn (1893) 4 a ground of complaint on the part of Misc. 600, 24 N. Y. Supp. 558; Metz v. the defendants. The court also indi- Campbell Printing Press & Mfg. Co. cated that the nature of the evidence (1895) 11 Misc. 284, 32 N. Y. Supp. was such that the jury might have al- 155; Feldman v. Levy (1907) 56 Misc. lowed the set-off and defense offered 563, 106 N. Y. Supp. 1092. by the defendants, thereby accounting That view was adopted in the case for the alleged compromise verdict. of Stetson V. Stindt (Fed.) supra.

In Smith v. Railroad Employees' The action was brought to recover Development Co. (1917) – Tex. Civ. the unpaid balance of principal and App. 195 S. W. 220, an action to interest due on a promissory note. recover for the value of labor and Undisputed evidence showed the services rendered on a contract to amount to be $56,990.70. The court drill an oil well, the court held that instructed the jury to find for that the appellant had no right to com- amount if they found in favor of plain that the appellee received a the plaintiff, but the jury, in apparent verdict for only one half of the sum disregard of the instruction, rendered claimed and supported by undis- a verdict for $27,439.42. This is puted proof. The claim was for $1,178 urged as error in the present appeal. and the verdict was for $589. The The court said: “A verdict like the appellant argued that the size of the one under consideration, which is perverdict indicated that some of the verse and directly violative of the jurors did not believe a recovery charge of the court, and is wholly should be had, and that the verdict without evidence to support it, canfound was a compromise. The court not stand. It is not sufficient to say said that there was evidence which that the defendant cannot complain might justify a set-off, and that the because he was not injured. verdict was not necessarily a com- That liability might be for more promise. The general rule was there- than the jury found; yet it might upon applied, to the effect that “ap- be for nothing. What his liability pellant cannot take advantage of the is, the jury refused to say; but said fact that the verdict and judgment something else, which, under the law rendered against him is for an amount and on the facts, was simply untrue.” less than was established by the In H. B. Smith Co. v. Chapin (1891) proof."

38 N. Y. S. R. 463, 13 N. Y. Supp. 799,

the court took this view. Under the 0. Liquidated claim.

instructions the jury were limited to 1. Court instructions.

finding either $500 for the defendant, View that appellant may complain.

or the balance of $405.80 for the In actions on contract to recover a

plaintiff. The jury found for the deliquidated amount, the courts

fendant, but without awarding the

are divided in their view as to whether

$500. It was held that it was error

for the jury to disregard the court's the defeated party can complain that the jury rendered a verdict for a sum

instructions, and that either party less than that required by the instruc

had a right to a new trial. tions of the court, but the weight of

It was held in Jensen v. Duvall authority favors the view that the (1921) 192 Iowa, 960, 185 N. W. 584, party against whom the inadequate that either the plaintiff or the deverdict is rendered may object. Stet

fendant could raise the objection son v. Stindt (1922) 23 A.L.R. 302, that the jury rendered an inadequate 279 Fed. 209; Jensen v. Duvall (1921) verdict, contrary to the evidence and 192 Iowa, 960, 185 N. W. 584; Peter- the instructions of the court.

It apa

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peared in evidence that the appel- or none, the appellant cannot comlant was discharged from employ- plain of the inadequacy of the verment contrary to contract with the dict found against him. McClung v. appellee. The jury rendered a verdict Moore (1902) 138 Cal. 181, 71 Pac. for much less than che instructions 98; Dolvin v. American Harrow Co. required in case of a verdict for the (1908) 131 Ga. 300, 62 S. E. 198; plaintiff.

Dunning v. Studt (1915) 51 Okla. 388, In Feldman v. Levy (N. Y.) supra, 151 Pac. 1066. the court instructed the jury to find In McClung v. Moore (Cal.) supra, for $505 if they believed the plaintiff the defendant sought a new trial on should recover on the alleged contract the ground that the jury rendered a of employment. The jury, contrary

The jury, contrary verdict much lower than that they to the instruction, fixed the amount were instructed by the court to render of the recovery at $250. The defend- in case the plaintiff was found enant was allowed to object to the titled to a recovery. The court held inadequacy of the verdict.

that the inadequacy of the verdict was A similar decision was rendered in in no wise injurious to the defendant, Fuld v. Kahn (1893) 4 Misc. 600, 24 and that consequently he could not N. Y. Supp. 558, an action by the complain. The plaintiff sued to reassignee of wages due on a contract cover $2,988.50 in commissions earned of employment. The court charged according to an alleged express conthe jury to allow $50 if the plaintiff tract, or, in the alternative, to recover was entitled to recover. The verdict $3,500, the reasonable value of serve was for $25.

ices rendered. The jury rendered In Metz v. Campbell Printing Press a verdict for $764.73 in favor of the & Mfg. Co. (1895) 11 Misc. 284, 32 plaintiff. N. Y. Supp. 155, it was held that the The same situation arose in Dundefendant could object to a verdict ning v. Studt (Okla.) supra. The for $91, rendered contrary to instruc- court said: “Defendant asserts that, tions that the plaintiff should recover under the instructions of the court, $202.77 or nothing.

if the jury found for the plaintiff And in Alden v. Sacramento Sub- its verdict should have been for $280; urban Fruit Lands Co. (1917) 137 but how can he be prejudiced if the Minn. 161, 163 N. W. 133, an action jury, in disregard of the court's into recover commissions amounting to structions, returned a less verdict $1,250 on an express contract, the against him than the plaintiff is enjury rendered a verdict for $600, titled to under the court's instrucwhich was contrary to the instruc- tions? The plaintiff only was the agtions of the court that a recovery, grieved party in this instance, and if at all, should be for the full he only should be heard to complain. amount. The error was held to be

The verdict of the jury, while one of which the defeated party could not conforming to the instruction of complain.

the court, is easily explainable. In Peterson v. Patrick (1879) 126 It is a matter of common note that Mass. 395, an action on a note, the juries often render such verdicts as jury disregarded certain instructions met with in this case; but the one in reference to the allowance of par- towards whom the lenience is shown tial defenses and set-offs. It was held should not be permitted to take adthat the party against whom the vantage of that fact, for the other verdict was rendered could object to party only has any just right to comits inadequacy.

plain." View that appellant may not complain.

One of the grounds relied on in a In a few jurisdictions the courts

motion for a new trial in Dolvin v. have adopted the contrary view that, American Harrow Co. (1908) 131 Ga. even though the jury render a verdict 300, 62 S. E. 198, an action on a contrary to instructions that the re- promissory note, was that the verdict covery must be for the full amount against the appellant did not include costs and attorneys' fees, and was case of Stretch' v. Stretch (Mich.) therefore inadequate and contrary to supra, an action to recover the printhe instructions of the court. The cipal and interest due on a note, was court dismissed the contention with stated as follows: “It must be cona declaration of the general rule that ceded, as a matter of law, that the a defendant against whom a verdict plaintiff was entitled to a judgment has been returned cannot complain for the full amount of principal and that the verdict is for a less amount interest, if for anything; that is, to than that demanded by the evidence.". a judgment for $1,749.91. The jury,

however, awarded a judgment for only 2. Express contract.

$550, the amount of the principal. View that appellant may not complain. This, the defendant claims, clearly

In an action to recover a liquidated shows that it was a compromise veramount on an express contract fixing dict. If it was a compromise verdict, the proper amount of recovery, the it ought undoubtedly to be set aside. courts commonly deny the appellant The wrong, however, in such a verthe right to complain that the appel- dict, rests in the fact that it does not lee should have received the full

express the real judgment of the amount or nothing. Such jurisdic

Such jurisdic- jurors, and not alone that it is too tions consider the error, if any, harm- large or too small. A defendant canless.

not object that a verdict is too small Alabama. Stokely V. Bessemer if it is actually the expression of the Coal, Iron & Land Co. (1918) 202 judgment of the jurors. Nor will a Ala, 576, 81 So. 78.

court set aside a verdict as being the California. Payne v. Commercial result of a compromise unless it clear. Nat. Bank (1917) 177 Cal. 68, L.R.A. ly appears that it actually was such 1918C, 328, 169 Pac. 1007.

a result, and that does not necessarily Colorado. — Lynch v. Smyth (1898) appear in this case.". 25 Colo. 103, 54 Pac. 634.

Insufficiency of the plaintiff's verGeorgia. Groover v. Hardeman dict was held to be harmless error (1918) 21 Ga. App. 661, 94 S. E. 812; in Groover v. Hardeman (Ga.) supra, O'Quinn v. Edmondson (1922) 28 an action on a promissory note. The Ga. App. 351, 111 S. E. 583.

jury rendered a verdict for the Indiana. Lighty Overbay amount of the note, but did not al(1868) 29 Ind. 433; Fischer v. Holmes low for interest which had accrued (1889) 123 Ind. 525, 24 N. E. 377; on the note. The defendant comNoftsger v. Smith (1892) 6 Ind. App. plained of the fact, and the court said 54, 32 N. E. 1024.

that the plaintiff was the only party Michigan. Stretch v. Stretch who could raise the question. (1916) 191 Mich. 416, 158 N. W. 185; It was said in Payne v. CommerBig Rapids Nat. Bank v. Peters (1899) cial Nat. Bank (Cal.) supra, that the 120 Mich. 518, 79 N. W. 891. Com- defendant could not complain that pare Benedict v. Michigan Beef &

the plaintiff's verdict was for $5 less Provision Co. (1898) 115 Mich. 527, 73 than the amount to which he might N. W. 802.

be assumed to be entitled. Nebraska. Ackerman v. Bryan Where it appeared that the ver(1891) 33 Neb. 515, 50 N. W. 435. dict against a surety on a promissory Wyoming. Bolln v.

Metcalf note was for an amount less than was (1895) 6 Wyo. 1, 71 Am. St. Rep. 898, due, he could not complain that the 42 Pac. 12, 44 Pac. 694.

judgment against him was too small, “A party cannot complain that a Bolln v. Metcalf (Wyo.) supra. verdict against him is less than the The court held in Lynch v. Smyth amount due according to the contract (Colo.) supra, that, in the absence of sued upon.” Stokely v. Bessemer Coal, complaint on the part of the plainIron & Land Co. (Ala.), and O’Quinn tiff, the defendant was not in a posiv. Edmondson (Ga.), supra.

tion to object to an error, harmless The conclusion of the court in the and in his favor. It appeared that

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