peared in evidence that the appellant was discharged from employment contrary to contract with the appellee. The jury rendered a verdict for much less than the instructions required in case of a verdict for the plaintiff.

In Feldman v. Levy (N. Y.) supra, the court instructed the jury to find for $505 if they believed the plaintiff should recover on the alleged contract of employment. The jury, contrary to the instruction, fixed the amount of the recovery at $250. The defendant was allowed to object to the inadequacy of the verdict.

A similar decision was rendered in Fuld v. Kahn (1893) 4 Misc. 600, 24 N. Y. Supp. 558, an action by the assignee of wages due on a contract of employment. The court charged the jury to allow $50 if the plaintiff was entitled to recover. The verdict was for $25.

In Metz v. Campbell Printing Press & Mfg. Co. (1895) 11 Misc. 284, 32 N. Y. Supp. 155, it was held that the defendant could object to a verdict for $91, rendered contrary to instructions that the plaintiff should recover $202.77 or nothing.

And in Alden v. Sacramento Suburban Fruit Lands Co. (1917) 137 Minn. 161, 163 N. W. 133, an action to recover commissions amounting to $1,250 on an express contract, the jury rendered a verdict for $600, which was contrary to the instructions of the court that a recovery, if at all, should be for the full amount. The error was held to be one of which the defeated party could complain.

In Peterson v. Patrick (1879) 126 Mass. 395, an action on a note, the jury disregarded certain instructions in reference to the allowance of partial defenses and set-offs. It was held that the party against whom the verdict was rendered could object to its inadequacy.

View that appellant may not complain.

In a few jurisdictions the courts have adopted the contrary view that, even though the jury render a verdict contrary to instructions that the recovery must be for the full amount

or none, the appellant cannot complain of the inadequacy of the verdict found against him. McClung v. Moore (1902) 138 Cal. 181, 71 Pac. 98; Dolvin v. American Harrow Co. (1908) 131 Ga. 300, 62 S. E. 198; Dunning v. Studt (1915) 51 Okla. 388, 151 Pac. 1066.

In McClung v. Moore (Cal.) supra, the defendant sought a new trial on the ground that the jury rendered a verdict much lower than that they were instructed by the court to render in case the plaintiff was found entitled to a recovery. The court held that the inadequacy of the verdict was in no wise injurious to the defendant, and that consequently he could not complain. The plaintiff sued to recover $2,988.50 in commissions earned according to an alleged express contract, or, in the alternative, to recover $3,500, the reasonable value of services rendered. The jury rendered a verdict for $764.73 in favor of the plaintiff.

The same situation arose in Dunning v. Studt (Okla.) supra. The court said: "Defendant asserts that, under the instructions of the court, if the jury found for the plaintiff its verdict should have been for $280; but how can he be prejudiced if the jury, in disregard of the court's instructions, returned a less verdict against him than the plaintiff is entitled to under the court's instructions? The plaintiff only was the aggrieved party in this instance, and he only should be heard to complain.

The verdict of the jury, while not conforming to the instruction of the court, is easily explainable.

It is a matter of common note that juries often render such verdicts as met with in this case; but the one towards whom the lenience is shown should not be permitted to take advantage of that fact, for the other party only has any just right to complain."

One of the grounds relied on in a motion for a new trial in Dolvin v. American Harrow Co. (1908) 131 Ga. 300, 62 S. E. 198, an action on a promissory note, was that the verdict against the appellant did not include

The

costs and attorneys' fees, and was therefore inadequate and contrary to the instructions of the court. court dismissed the contention with a declaration of the general rule that "a defendant against whom a verdict has been returned cannot complain that the verdict is for a less amount than that demanded by the evidence."

2. Express contract.

View that appellant may not complain. In an action to recover liquidated amount on an express contract fixing the proper amount of recovery, the courts commonly deny the appellant the right to complain that the appellee should have received the full amount or nothing. Such jurisdictions consider the error, if any, harmless.

Alabama. Stokely v. Bessemer Coal, Iron & Land Co. (1918) 202 Ala. 576, 81 So. 78.

California. Payne v. Commercial Nat. Bank (1917) 177 Cal. 68, L.R.A. 1918C, 328, 169 Pac. 1007.

Colorado. Lynch v. Smyth (1898) 25 Colo. 103, 54 Pac. 634.

Georgia. Groover v. Hardeman (1918) 21 Ga. App. 661, 94 S. E. 812; O'Quinn v. Edmondson (1922) 28 Ga. App. 351, 111 S. E. 583.

Indiana.

Lighty V. Overbay (1868) 29 Ind. 433; Fischer v. Holmes (1889) 123 Ind. 525, 24 N. E. 377; Noftsger v. Smith (1892) 6 Ind. App. 54, 32 N. E. 1024.

Michigan. Stretch v. Stretch (1916) 191 Mich. 416, 158 N. W. 185; Big Rapids Nat. Bank v. Peters (1899) 120 Mich. 518, 79 N. W. 891. Compare Benedict v. Michigan Beef & Provision Co. (1898) 115 Mich. 527, 73 N. W. 802.

Ackerman v. Bryan (1891) 33 Neb. 515, 50 N. W. 435. Bolln Wyoming. Metcalf (1895) 6 Wyo. 1, 71 Am. St. Rep. 898, 42 Pac. 12, 44 Pac. 694.

V.

"A party cannot complain that a verdict against him is less than the amount due according to the contract sued upon." Stokely v. Bessemer Coal, Iron & Land Co. (Ala.), and O'Quinn v. Edmondson (Ga.), supra.

The conclusion of the court in the

case of Stretch v. Stretch (Mich.) supra, an action to recover the principal and interest due on a note, was stated as follows: "It must be conceded, as a matter of law, that the plaintiff was entitled to a judgment for the full amount of principal and interest, if for anything; that is, to a judgment for $1,749.91. The jury, however, awarded a judgment for only $550, the amount of the principal. This, the defendant claims, clearly shows that it was a compromise verdict. If it was a compromise verdict, it ought undoubtedly to be set aside. The wrong, however, in such a verdict, rests in the fact that it does not express the real judgment of the jurors, and not alone that it is too large or too small. A defendant cannot object that a verdict is too small if it is actually the expression of the judgment of the jurors. Nor will a court set aside a verdict as being the result of a compromise unless it clear. ly appears that it actually was such a result, and that does not necessarily appear in this case."

a

Insufficiency of the plaintiff's verdict was held to be harmless error in Groover v. Hardeman (Ga.) supra, an action on a promissory note. The jury rendered verdict for the amount of the note, but did not allow for interest which had accrued on the note. The defendant complained of the fact, and the court said that the plaintiff was the only party who could raise the question.

It was said in Payne v. Commercial Nat. Bank (Cal.) supra, that the defendant could not complain that the plaintiff's verdict was for $5 less than the amount to which he might be assumed to be entitled.

Where it appeared that the verdict against a surety on a promissory note was for an amount less than was due, he could not complain that the judgment against him was too small. Bolln v. Metcalf (Wyo.) supra.

The court held in Lynch v. Smyth (Colo.) supra, that, in the absence of complaint on the part of the plaintiff, the defendant was not in a position to object to an error, harmless and in his favor. It appeared that

the plaintiff sued on a bond, but recovered less than the amount of the instrument. The defendant complained that the plaintiff was entitled to a larger verdict, if he prevailed at all, and that the smaller verdict showed a compromise.

Although the contract sued upon in Ackerman v. Bryan (Neb.) supra, called for $75 for commissions, "no more and nothing less," and no view of the evidence justified the verdict for $19, the decision of the court was that the defendant had no right to complain that the plaintiff's verdict was not for a larger sum.

Holmes

The case of Fischer v. (1889) 123 Ind. 525, 24 N. E. 377, followed the general rule. The court said: "As the jury found, however, that the appellant and the appellee made the contract set out in the complaint, it would seem that the appellant should not be heard to complain that the jury did not allow the appellee as large a sum as he was entitled to recover. If the jury erred it was in favor of the appellant, and he cannot complain that such error injured him.” The record showed that the appellant employed the appellee to sell certain real estate for $2,300, at 3 per cent commission. The jury returned a verdict for $50 instead of $69. The appellant objected that the verdict should be $69 or nothing.

"A party cannot object to a judgment rendered in his own favor,

or to a failure to assess all the damages against him to which his adversary was entitled." Noftsger v. Smith (1892) 6 Ind. App. 54, 32 N. E. 1024. According to the evidence it was undisputed that the appellant hired the appellee for a year.

Before

the year was up the appellee was paid wages up to date and ceased working. The conflicting evidence was in relation to whether the appellee was discharged, or quit of his own volition or by mutual agreement. A verdict was rendered in favor of the appellee, and the appellant contended that the verdict was error, because less damages were allowed than the appellee was entitled to, if

entitled to recover anything. It was held that the error was harmless and no ground for new trial on the part of the appellant.

The court in Benedict v. Michigan Beef & Provision Co. (1898) 115 Mich. 527, 73 N. W. 802, indicated by way of dictum that if a small verdict resulted from a compromise the fact would be ground of complaint available to either party.

But the fact that the jury found for the plaintiff the amount of the promissory notes sued upon, but failed to allow interest thereon, has been held in the same jurisdiction to be harmless error, and not necessarily a compromise of which the defendant could complain. Big Rapids Nat. Bank v. Peters (1899) 120 Mich. 518, 79 N. W. 891.

View that appellant may complain.

Several jurisdictions have adopted the contrary view, to the effect that where the contract sued on fixes the measure of recovery, a verdict for less than the full amount is error of which the defeated party may complain. Bressler v. McVey (1910) 82 Kan. 341, 108 Pac. 97; Cole v. Armour (1899) 154 Mo. 333, 55 S. W. 476; Weisels-Gerhardt Real Estate Co. v. Pemberton Invest. Co. (1910) 150 Mo. App. 626, 131 S. W. 353; Witty v. Saling (1913) 171 Mo. App. 574, 154 S. W. 421; Blakely v. Miller (1914) 180 Mo. App. 389, 167 S. W. 1136; Coyne v. Golland (1922) Mo. App. -,.243 S. W. 376; Pionier v. Alexander (1894) 7 Misc. 709, 28 N. Y. Supp. 157; Harton v. Bloom (1871) 1 Jones & S. (N. Y.) 115; Powers v. Gouraud (1897) 19 Misc. 268, 44 N. Y. Supp. 249; Elmer v. Levin (1905) 95 N. Y. Supp. 537; Neador v. Northwestern Gas & E. Co. (1909) 55 Wash. 47, 103 Pac. 1107; New Home Sewing Mach. Co. v. Simon (1900) 107 Wis. 368, 83 N. W. 649.

Where the issue is contract or no contract, and the contract found existent unalterably fixes the measure of liability, a verdict for less than the stipulated amount cannot stand. Cole v. Armour (1899) 154 Mo. 333, 55 S. W. 476; WeiselsGerhardt Real Estate Co. v. Pember

It was held in Cole v. Armour (Mo.) supra, that where the case presented to the jury entitled the plaintiff to $12,229.34, if the jury found that the special contract relied on existed, or nothing if it did not exist, a verdict for $6,000 was error, and the defendant could complain of the inadequacy of the verdict as contrary to the evidence and the law. The court said: "Under the pleadings and proofs, the plaintiff was entitled to recover $12,229.34, with interest at the rate of 6 per cent per annum from November 20, 1895, the date the suit was filed, or else he was not entitled to recover a cent. There can be no middle ground in the case. . But the verdict shows that the jury did not believe any of this testimony, for, if they had, the verdict would necessarily have been for the full amount claimed, of $12,229.34 and interest. Being for $6,000, it shows that the jury attempted to do 'rough justice' between the parties, according to principles of right which they set up for themselves, in total disregard of the issues or instructions in the case. Such a verdict cannot be sustained upon any theory or principle of law. And the fact that, 'for one consideration or another,' the plaintiff has not complained that he has not recovered as large an amount as the evidence shows he was entitled to, and therefore the defendant will not have to pay as much as he would have had to pay if the verdict had responded to the issues and proofs, does not help the matter. The judgment of the circuit court is reversed."

In Blakely v. Miller (1914) 180 Mo. App. 389, 167 S. W. 1136, the court said by way of dictum: "An exception to the rule is found in cases where the issue is contract or no

contract, and the alleged contract unalterably fixes the measure of liability."

Error was assigned in New Home Sewing Mach. Co. v. Simon (1900) 107 Wis. 368, 83 N. W. 649, to the effect that there was no evidence to warrant the finding of a verdict of $1,000. The court in allowing the claim said: "Error is assigned because the court permitted the verdict of $1,000 to stand, there being no evidence to warrant a finding except either of no cause of action, or of substantially the full amount claimed by plaintiff, indicating that the cause was not fairly considered by the jury, and that the verdict was purposely or recklessly made regardless of the evidence. It needs no argument or citation of authority to justify the conclusion that such a verdict ought not, and cannot, be permitted to stand. It should have been set aside by the trial court without hesitation. This is not a case where the jury was called upon to assess mere unliquidated damages. If plaintiff was entitled to a verdict, the amount of it was susceptible of being determined with mathematical accuracy."

In Bressler v. McVey (1910) 82 Kan. 341, 108 Pac. 97, the court held that either party could complain of the inadequacy of the verdict. There was no dispute in the evidence to the effect that the appellee was entitled to $500 in real estate commissions. The court said: "The appellant claims that the judgment should not stand because it is contrary to the evidence, inasmuch as, whatever view may have been taken of the conflicting testimony, plaintiff was entitled to $500 or to nothing at all. The appellee seeks to answer this contention by saying that a party cannot complain that a judgment against him is too small. .

the

him $500; if not, there was no indebtedness. The jury were called upon to determine which condition existed, but instead of doing so they assumed to settle the controversy by allowing one half of the claim and disallowing the other half, no doubt with the idea that 'splitting the difference' was a fair method of compromising the dispute. But in this they mistook their function. Each litigant, the defendant no less than the plaintiff, was entitled to an answer to the question the jury were impaneled to determine. . . The court has undoubted power to refuse to accept a verdict rendered under such circumstances. . . If it is received, it should be set aside at the instance of either party, as contrary to the evidence."

It is indicated in Meador v. Northwestern Gas & E. Co. (1909) 55 Wash. 47, 103 Pac. 1107, that, if objection is made immediately after the verdict is rendered, the inadequacy of the verdict is ground of complaint on the part of the party against whom it is rendered.

It was stated by way of dictum in Elmer v. Levin (1905) 95 N. Y. Supp. 537: "Where a verdict, in awarding too little, suggests that the jury conceded, but compromised upon, the other party's right to all, the result is not to be permitted to stand, as has been many times declared by the authorities."

No re

An inadequate verdict was set aside in Powers v. Gouraud (1897) 19 Misc. 268, 44 N. Y. Supp. 249, at the instance of the defendant against whom the verdict was rendered. It appeared that under the evidence the jury had but two alternatives-either to find for the plaintiff for $4,982.69, with interest, for commissions earned, or else to find for the defendant. covery on a quantum meruit was sought or warranted by the evidence. However, the verdict rendered was for the plaintiff in the sum of $1,000. In setting aside the verdict as inadequate, the court said that the doctrine laid down in Harton v. Bloom (1871) 1 Jones & S. (N. Y.) 115, was controlling. "The defendant cannot

The

complain because the plaintiff did not recover against him as large a verdict as he was entitled to, unless the amount of the verdict shows that the jury, in determining the case, either wholly disregarded the evidence, or misapprehended its effect, or overlooked some important fact, or must have necessarily found some fact in favor of defendant which is wholly inconsistent with a verdict for any amount in favor of plaintiff." And the court added further: "In this case the verdict clearly shows that it was the result of a compromise, and that the jury either misunderstood or wholly disregarded the evidence. It cannot be said that a new trial would not change the result. verdict must be set aside." Express contract as affected by counterclaim, set-off, or partial defense. Even though the claim sued on is liquidated by the terms of the express contract sued on, the appellant cannot object to the inadequacy of the verdict against him, where the jury heard evidence which justified an allowance for a counterclaim, set-off, or partial defense. See, the reported case (ANSONIA FOUNDRY Co. v. BETHLEHEM STEEL CO. ante, 1087). See also Strickland v. Hutchinson (1905) 123 Ga. 396, 51 S. E. 348; Coutrakon v. Passow & Sons (1915) 193 Ill. App. 447; Lighty v. Overbay (1868) 29 Ind. 433; Harton v. Bloom (1871) 1 Jones & S. (N. Y.) 115, and Rudolph v. Hewitt (1899) 11 S. D. 646, 80 N. W. 133.

The reported case (ANSONIA FOUNDRY Co. v. BETHLEHEM STEEL Co.) follows the general rule to the effect that the inadequacy of the verdict is no ground of complaint by the party against whom it is rendered. According to the record the plaintiff sued to recover payments made for goods delivered, but found to be inferior to representations. The defendant counterclaimed for damages for the failure of the plaintiff to accept and pay for the balance of the goods ready for shipment. The evidence showed that on a resale the defendant lost $15,796.43. The jury found for the defendant on the counterclaim, but awarded a verdict of only