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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 com- 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


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

less than the stipulated amount cantended that 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





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. —,243 Wis. 368, 83 N. W. 649, to the effect S. W. 376; Pionier 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 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:

“An 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 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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$5,421.87. The plaintiff complained against the appellants on a promisthat if the defendant was entitled to

sory note.

The defense relied recover, a larger recovery was war- on was the breach of an alleged ranted by the undisputed evidence, warranty.

The jury found and that such a verdict, being incon- less than the face of the note, but sistent with the evidence, was mani- more than the amount to which the festly the result of an unlawful com- plaintiff was entitled under the evipromise. The court held that the dence, admitting that the alleged warplaintiff was not entitled to a new ranty was proven.

The jury, trial on the ground that the jury under the evidence, could well have rendered against it a verdict much found the full amount of the note smaller than the evidence warranted, and interest. That they found less and that there was no compromise is not a matter of which Lighty can verdict, as no rule of law entitled complain. As long as we require all the defendants to any particular the jury to agree, we must expect comamount of damages. The court also promise verdicts." said that the defendant could submit

II. In action in tort. to the insufficient verdict, and the plaintiff could not complain.

a. General rule. In Strickland v. Hutchinson (1905)

In an action in tort, the amount 123 Ga. 396, 51 S. E. 348, an action of damages being unliquidated, the to recover on a promissory note, the appellant has no ground to complain defendant interposed a counterclaim that the appellee recovered less than which appeared to entitle him to more he should. than the face of the note. The jury Alabama.-Alford v. Samuel (1845) found a nonsuit and charged each 8 Ala. 95. party one half of the costs. The California.-Compressed Air Mach. plaintiff moved for a new trial, and Co. v. West San Pablo Land & Water claimed that if the defendant was en- Co. (1908) 9 Cal. App. 361, 99 Pac. titled to the counterclaim, he was 551. entitled to much more than the jury Florida. Interstate Lumber Co. v. allowed him. The decision of the

Woods (1914) 67 Fla. 202, 64 So. 741. court was to the effect that such a

Georgia. Mullins v. Murphy state of facts furnished no ground (1882) 69 Ga. 754; Schaefer v. Knott of complaint on the part of the plain- (1882) 69 Ga. 772; Clark v. Thomptiff, who suffered no injury thereby. son (1896) 99 Ga. 221, 25 S. E. 247; It was held in Coutrakon v. Passow

Atlanta & B. Air-Line R. Co. v. & Sons (1915) 193 Ill. App. 447, that' Weaver (1904) 121 Ga. 466, 49 S. E. the appellants could not complain 291; Decatur County v. Philyaw that the verdict was the result of com- (1921) 26 Ga. App. 702, 106 S. E. 799; promise because it was less than the Central of Georgia R. Co. v. Trammell amount which might have been found (1901) 114 Ga. 312, 40 S. E. 259. due the appellee. The court indi- Illinois. Florsheim v. Dullagham cated that the evidence might have (1895) 58 Ill. App. 593; Moyers V. warranted the jury in allowing a set- Illinois C. R. Co. (1915) 197 Ill. App. off or partial defense.

179; Ryan v. Harty (1916) 200 Ill. “A plaintiff cannot complain be- App. 470; Rauen v. Chicago R. Co. cause the jury awarded the defendant (1917) 205 Ill. App. 464. less than the full amount of his Kansas. Graves v. Negy (1923) counterclaim." Rudolph v. Hewitt 114 Kan. 373, 219 Pac. 286. (S. D.) supra, an action on a promis- Michigan.


Fowler sory note set off by a contract of (1908) 151 Mich. 485, 115 N. W. 469. guaranty.

Mississippi. - Kansas City, M. & The facts and the law were stated B. R. Co. v. Doggett (1889) 67 Miss. by the court in Lighty v. Overbay 250, 7 So. 278; Louisville & N. R. Co. (1868) 29 Ind. 433, as follows: "This v. Thomas (1906) 87 Miss. 600, 40 was a suit by Overbay's administrator So. 257.

31 A.L.R.-70.

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Missouri. Adams v. St. Louis & ing of a smaller verdict than the eviS. F. R. Co. (1910) 149 Mo. App. 278, dence warranted against it. The 130 S. W. 48; Allen v. Jackson (1919) court said: "In the case at bar we

Mo. App. —, 216 S. W. 539; Coyne think it perfectly clear from the v. Galland (1922) — Mo. App. -, 243 pleadings and the evidence of both S. W. 376.

plaintiff and defendant that, if plainNew Hampshire. - Luey v. Bundy tiff was entitled to recover the posses(1838) 9 N. H. 298, 32 Am. Dec. ,359. sion of the property sued for, it was

South Carolina. Trowbridge also entitled to recover as damages Charleston & W. R. Co. (1911) 90 the sum of $50 per month from the S. C. 183, 73 S. E. 78.

7th day of February, 1906. The findSouth Dakota. Fowler y. Aber ing, therefore, of a lesser sum in case deen R. Co. (1919) 41 S. D. 563, 171 a delivery could not be had, could N. W. 816; Fahrni v. Artz (1920) 43 in no wise injure appellant, but was S. D. 188, 178 N. W. 733.

to its benefit. . . A judgment Tennessee. Illinois C. R. Co. v. will not be reversed or a new trial Abernathey (1901) 106 Tenn. 722, granted for a mere error, when it 64 S. W. 3.

clearly appears that the appellant Texas. St. Louis, S. F. & T. R. has suffered no injury therefrom." Co, v. Fenley (1908) Tex, Civ. App. Even though the verdict in an ac-, 118 S. W. 845; Taylor Bros. v. tion for tort cannot be reconciled Hearn (1910) 63 Tex. Civ. App. 333, with any tenable theory, the defend133 S. W. 301; Galveston, H. & S. A. R. ant cannot take advantage of harmCo. v. State (1917) Tex. Civ. App. less error and complain that the evi-, 194 S. W. 462, reversed on other dence is sufficient to support a larger grounds in (1919) 110 Tex. 128, recovery for the plaintiff. Farmers' 216 S. W. 393, 218 S. W. 361; Farmers' & M. State Bank y. Guffey (1923) & M. State Bank v. Guffey (1923)

Tex. Civ. App. , 255 S. W. 462, Tex. Civ. App. 255 S. W. 462.

an action for the conversion of bank Washington. — Saylor v. Montesano deposits to the extent of $4,033.50 (1895) 11 Wash. 328, 39 Pac. 653; wherein a verdict for $1,500 was reJose v. Stetson (1899) 20 Wash. 648, turned. 56 Pac. 397; Ross v. Rose (1920) Where verdict was rendered 109 Wash. 273, 186 Pac. 892.

against a sheriff for a statutory Wisconsin, Corcoran v. Harran amount for failure to pay over money (1882) 55 Wis. 120, 12 N. W. 468. collected on a fieri facias, he could

not complain that the verdict was b. Application of rule.

inadequate, as not including the Tort against property.

amount of the execution. Alford y. The general rule was applied in Samuel (1845) 8 Ala. 95. Compressed Air Mach. Co. v, West The rule was also applied in InterSan Pablo Land Co. (1908) 9 Cal. App. state Lumber Co. v. Woods (1914) 67 361, 99 Pac. 531, where the plaintiff Fla. 202, 64 So. 741, and in Newhouse sued to recover the possession of Mill & Lumber Co. v. Avery (1911) certain machinery and $673 damages 101 Ark. 34, 140 S. W. 985, wherein for conversion, or the sum of $1,200 action was brought to recover exemand damages in case the machinery plary damages for unlawfully cutting could not be delivered. The jury re- timber, but only compensatory damturned a verdict in favor of the plain- ages were awarded. tiff for the recovery of the machinery, And likewise, in Florsheim v. Duland damages at the rate of $50 per laghan (1895) 58 Ill. App. 593, an acmonth for the detention thereof, or, tion for trespass, the court said: in case a delivery could not be had, “That the damages are less than the the sum of $1,200 as the value of the evidence required can be complained property, and $150 damages for the of only by the plaintiffs below.” detention. It was held that the de- It was contended in Graves v. Negy fendant could not object to the find- (1923) 114 Kan. 373, 219 Pac. 286,


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