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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 the 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 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 serv: 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

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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- 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 v. 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 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, 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



the plaintiff sued on a bond, but re- entitled to recover anything. It was covered less than the amount of the held that the error was harmless and instrument. The defendant


no ground for new trial on the part plained that the plaintiff was entitled of the appellant. to a larger verdict, if he prevailed The court in Benedict v. Michigan at all, and that the smaller verdict Beef & Provision Co. (1898) 115 showed a compromise.

Mich. 527, 73 N. W. 802, indicated Although the contract sued upon in by way of dictum that if a small Ackerman V. Bryan (Neb.) supra, verdict resulted from a compromise called for $75 for commissions, "no the fact would be ground of commore and nothing less," and no view plaint available to either party. of the evidence justified the verdict But the fact that the jury found for $19, the decision of the court was for the plaintiff the amount of the that the defendant had no right to promissory notes sued upon, but complain that the plaintiff's verdict failed to allow interest thereon, has was not for a larger sum.

been held in the same jurisdiction The case of Fischer Holmes to be harmless error, and not neces. (1889) 123 Ind. 525, 24 N. E. 377, sarily a compromise of which the defollowed the general rule. The court fendant could complain. Big Rapids said: "As the jury found, however, Nat. Bank v. Peters (1899) 120 Mich. that the appellant and the appellee 518, 79 N. W. 891. made the contract set out in the com- View that appellant may complain. plaint, it would seem that the ap

Several jurisdictions have adopted pellant should not be heard to com

the contrary view, to the effect that plain that the jury did not allow the

where the contract sued on fixes the appellee as large a sum as he was

measure of recovery, a verdict for less entitled to recover. If the jury erred

than the full amount is error of which it was in favor of the appellant, and

the defeated party may complain. he cannot complain that such error

Bressler V. McVey (1910) 82 Kan. injured him." The record showed

341, 108 Pac. 97; Cole v. Armour that the appellant employed the ap

(1899) 154 Mo. 333, 55 S. W. 476; pellee to sell certain real estate for

Weisels-Gerhardt Real Estate Co. v. $2,300, at 3 per cent commission. The

Pemberton Invest. Co. (1910) 150 Mo. jury returned a verdict for $50 in

App. 626, 131 S. W. 353; Witty v. stead of $69. The appellant objected Saling (1913) 171 Mo. App. 574, 154 that the verdict should be $69 or noth

S. W. 421; Blakely v. Miller (1914) ing.

180 Mo. App. 389, 167 S. W. 1136; "A party cannot object to a judg

Coyne v. Golland (1922)

Mo. App. ment rendered in his own favor,

—,.243 S. W. 376; Pionier v. Alexanor to a failure to assess all

der (1894) 7 Misc. 709, 28 N. Y. Supp. the damages against him to which

157; Harton v. Bloom (1871) 1 Jones his adversary was entitled.” Noftsger

& S. (N. Y.) 115; Powers v. Gouraud v. Smith (1892) 6 Ind. App. 54, 32 N.

(1897) 19 Misc. 268, 44 N. Y. Supp. E. 1024. According to the evidence

249; Elmer v. Levin (1905) 95 N. Y. it was undisputed that the appellant Supp. 537; Neador v. Northwestern hired the appellee for a year. Before

Gas & E. Co. (1909) 55 Wash. 47, 103 the year was up the appellee was

Pac. 1107; New Home Sewing Mach. paid wages up to date and ceased

Co. v. Simon (1900) 107 Wis. 368, 83 working. The conflicting evidence

N. W. 649. was in relation to whether the ap

Where the issue is contract or no pellee was discharged, or quit of his

contract, and the contract found own volition or by mutual agreement.

existent unalterably fixes the measA verdict was rendered in favor of

ure of liability, a verdict for the appellee, and the appellant con

less than the stipulated amount cantended hat the verdict was error, be- not stand. Cole v. Armour (1899) cause less damages

allowed 154 Mo. 333, 55 S. W. 476; Weiselsthan the appellee was entitled to, if Gerhardt Real Estate Co. v. Pember


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- 243


ton Invest. Co. (1910) 150 Mo. App. contract, and the alleged contract 626, 131 S. W. 353; Witty v. Saling unalterably fixes the measure of lia(1913) 171 Mo. App. 574, 154 S. W. bility." 421; Blakely v. Miller (1914) 180 Mo. Error was assigned in New Home App. 389, 167 S. W. 1136; Coyne v. Sewing Mach. Co. v. Simon (1900) 107 Galland (1922) Mo. App.

Wis. 368, 83 N. W. 649, to the effect S. W. 376; Pionier V. Alexander that there was no evidence to warrant (1894) 7 Misc. 709, 28 N. Y. Supp. the finding of a verdict of $1,000. 157.

The court in allowing the claim said: It was held in Cole v. Armour (Mo.) “Error is assigned because the court supra, that where the case presented permitted the verdict of $1,000 to to the jury entitled the plaintiff to stand, there being no evidence to $12,229.34, if the jury found that the warrant a finding except either of no special contract relied on existed, or cause of action, or of substantially nothing if it did not exist, a verdict the full amount claimed by plaintiff, for $6,000 was error, and the defend- indicating that the cause was not ant could complain of the inadequacy fairly considered by the jury, and that of the verdict as contrary to the evi- the verdict was purposely or recklessdence and the law. The court said: ly made regardless of the evidence. “Under the pleadings and proofs, the It needs no argument or citation of plaintiff

entitled to recover authority to justify the conclusion $12,229.34, with interest at the rate that such a verdict ought not, and of 6 per cent per annum from No- cannot, be permitted to stand. It vember 20, 1895, the date the suit was should have been set aside by the trial filed, or else he was not entitled to court without hesitation. This is not recover a cent. There can be no mid- a case where the jury was called upon dle ground in the case. . But to assess mere unliquidated damages. the verdict shows that the jury did If plaintiff was entitled to a verdict, not believe any of this testimony, the amount of it was susceptible of for, if they had, the verdict would being determined with mathematical necessarily have been for the full accuracy." amount claimed, of $12,229.34 and In Bressler v. McVey (1910) 82 Kan. interest. Being for $6,000, it shows 341, 108 Pac. 97, the court held that that the jury attempted to do 'rough either party could complain of the justice' between the parties, accord- inadequacy of the verdict. There was ing to principles of right which they no dispute in the evidence to the effect set up for themselves, in total dis- that the appellee was entitled to $500 regard of the issues or instructions in in real estate commissions. The court the case.

Such a verdict cannot be said: "The appellant claims that the sustained upon any theory or prin- judgment should not stand because it ciple of law. And the fact that, 'for is contrary to the evidence, inasmuch one consideration or another, the as, whatever view may have been taken plaintiff has not complained that he of the

the conflicting testimony, the has not recovered as large an amount plaintiff was entitled to $500 or to as the evidence shows he was entitled nothing at all. The appellee seeks to to, and therefore the defendant will answer this contention by saying that not have to pay as much as he would a party cannot complain that a judghave had to pay if the verdict had ment against him is too small. responded to the issues and proofs, He finds fault with the judgment, not does not help the matter.

The because it is not large enough, but judgment of the circuit court is re- because it rests upon a verdict utterly versed.”

without support in the evidence. If In Blakely v. Miller (1914) 180 Mo. the verdict could be construed as a App. 389, 167 S. W. 1136, the court finding for the plaintiff, it would supsaid by way of dictum: "A excep- port a judgment not merely for $250, tion to the rule is found in cases but for $500. . If the plaintiff where the issue is contract or no testified truly, the defendant owed



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him $500; if not, there was no indebt complain because the plaintiff did not edness. The jury were called upon recover against him as large a verdict to determine which condition existed, as he was entitled to, unless the but instead of doing so they assumed amount of the verdict shows that the to settle the controversy by allowing jury, in determining the case, either one half of the claim and disallowing wholly disregarded the evidence, or the other half, no doubt with the misapprehended its effect, or overidea that 'splitting the difference' looked some important fact, or must was a fair method of compromising have necessarily found some fact in the dispute. But in this they mistook favor of defendant which is wholly their function. Each litigant, the de- inconsistent with a verdict for any fendant no less than the plaintiff, amount in favor of plaintiff.” And was entitled to an answer to the the court added further; "In this question the jury were impaneled to case the verdict clearly shows that it determine.

The court has un- was the result of a compromise, and doubted power to refuse to accept a that the jury either misunderstood verdict rendered under such circum- or wholly disregarded the evidence. stances.

If it is received, it It cannot be said that a new trial should be set aside at the instance would not change the result. The of either party, as contrary to the verdict must be set aside.” evidence."

Express contract as affected by counIt is indicated in Meador v. North- terclaim, set-off, or partial defense. western Gas & E. Co. (1909) 55 Wash. Even though the claim sued on is 47, 103 Pac. 1107, that, if objection is liquidated by the terms of the express made immediately after the verdict contract sued on, the appellant cannot is rendered, the inadequacy of the object to the inadequacy of the ververdict is ground of complaint on the dict against him, where the jury heard part of the party against whom it is evidence which justified an allowance rendered.

for a counterclaim, set-off, or partial It was stated by way of dictum in defense. See, the reported case Elmer Levin (1905) 95 N. Y. (ANSONIA FOUNDRY Co. v. BETHLEHEM Supp. 537: “Where a verdict, in STEEL Co. ante, 1087). See also Strickawarding too little, suggests that the land v. Hutchinson (1905) 123 Ga. jury conceded, but compromised upon, 396, 51 S. E. 348; Coutrakon v. Passow the other party's right to all, the re- & Sons (1915) 193 Ill. App. 447; sult is not to be permitted to stand, Lighty v. Overbay (1868) 29 Ind. 433; as has been many times declared by Harton v. Bloom (1871) 1 Jones & S. the authorities."

(N. Y.) 115, and Rudolph v. Hewitt An inadequate verdict was set aside (1899) 11 S. D. 646, 80 N. W. 133. in Powers v. Gouraud (1897) 19 Misc. The reported case (ANSONIA FOUN268, 44 N. Y. Supp. 249, at the in- DRY Co. v. BETHLEHEM STEEL Co.) stance of the defendant against whom follows the general rule to the effect the verdict was rendered. It appeared that the inadequacy of the verdict that under the evidence the jury had is no ground of complaint by the but two alternatives—either to find party against whom it is rendered. for the plaintiff for $4,982.69, with According to the record the plaintiff interest, for commissions earned, or sued to recover payments made for else to find for the defendant.

No re

goods delivered, but found to be incovery on a quantum meruit was ferior to representations. The defendsought or warranted by the evidence. ant counterclaimed for damages for However, the verdict rendered was the failure of the plaintiff to accept for the plaintiff in the sum of $1,000. and pay for the balance of the goods In setting aside the verdict as inade- ready for shipment. The evidence quate, the court said that the doc- showed that on a resale the defendant trine laid down in Harton v. Bloom lost $15,796.43. The jury found for (1871) 1 Jones & S. (N. Y.) 115, was the defendant on the counterclaim, controlling. "The defendant cannot but awarded a verdict of only


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