43 F.2d 537 (3rd Cir. 1930), 4240, Garfield Aniline Works, Inc. v. Zendle

Docket Nº:4240.
Citation:43 F.2d 537
Case Date:September 19, 1930
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 537

43 F.2d 537 (3rd Cir. 1930)




No. 4240.

United States Court of Appeals, Third Circuit.

September 19, 1930

         Stein, McGlynn & Hannoch, of Newark, N.J. (Edward R. McGlynn, of Newark, N.J., of counsel), for appellant.

         Elmer Friedbauer, of Passaic, N.J., for appellee.

         Before WOOLLEY and DAVIS, Circuit Judges, and JOHNSON, District Judge.

         DAVIS, Circuit Judge.

         This is an appeal from a judgment entered upon a verdict which was reduced by the trial judge to conform to what he thought was the obvious intention of the jury.

Page 538

         Abraham Zendle, who was plaintiff below, was an employee of the defendant company, which is the appellant here. Speaking of the parties as they appeared below, the defendant was engaged in manufacturing dye stuffs and colors. It entered into an agreement with Zendle in November, 1919, providing that in addition to his stipulated weekly salary, he was to receive commissions ranging from 1 to 10 cents per pound upon specific colors produced in his department and in the department under his supervision and that he was to draw upon his commissions as and when he needed money.

         From the date of the contract the plaintiff received numerous payments on account of commissions, in addition to his weekly salary, until December 23, 1924, when he received $300, which was the last payment made. When this suit was brought the plaintiff claims that the defendant owed him in commissions $8,448.16, and he demanded payment of this together with interest from December 23, 1924. The jury, however, rendered a verdict of $11,126.35, which the trial judge reduced to $10,616.52, the amount he said was intended; the excess of $509.83 being a mistake in calculation of interest. In summing up his case to the jury, this was the amount ($8,448.16, with interest at 6 per cent. from December 23, 1924, to April 3, 1929, the date of the trial, a period of four years, three months, and ten days) which the defendant demanded.

         This question might be disposed of on technical grounds because an exception was not taken to the order reducing the verdict. Wyss-Thalman v. Maryland Casualty Company of Baltimore (C.C.A.) 193 F. 53; Blisse v. United States (C.C.A.) 263 F. 961; Insurance Company v. Folsom, 85 U.S. 293, 12 S.Ct. 450, 36 L.Ed. 162; O'Connell et al. v. United States, 253 U.S. 142, 40 S.Ct. 444, 64 L.Ed. 827; Exporters v. Butterworth-Judson Co., 258 U.S. 365, 42 S.Ct. 331, 66 L.Ed. 663. However, we will dispose of the case on its merits.

         A verdict will generally be set aside and a new trial granted where it is so excessive as to indicate passion, prejudice, or other improper motive on the part of the jury, where it is contrary to the charge of the court, and where, in actions on contracts, the excess cannot be ascertained; but in actions based on contracts, if the excess can be readily ascertained, the verdict will be reduced and molded to the proper amount. Rafferty, Receiver v....

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