Garfield Aniline Works v. Zendle

• Decision Date: 19 September 1930
• Docket Number: No. 4240.,4240.
• Citation: 43 F.2d 537
• Parties: GARFIELD ANILINE WORKS, Inc., v. ZENDLE.
• Court: U.S. Court of Appeals — Third Circuit

43 F.2d 537 (1930)

GARFIELD ANILINE WORKS, Inc., v. ZENDLE.

No. 4240.

Circuit 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.

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. (18 Wall.) 237, 21 L. Ed. 827; Michigan Insurance Co. v. Eldred, 143 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 contract, the excess cannot be ascertained; but in actions based on contract, if the excess can be readily ascertained, the verdict will be reduced and molded to the proper amount. Rafferty, Receiver v. Bank of Jersey City, 33 N. J. Law, 368; Schreiber v. Fidelity & Casualty Company, 2 N. J. Misc. R. 272; Quinlan v. Welsh, 75 N. J. Law, 225, 66 A. 950; Bozza v. Leonardis (N. J. Sup.) 131 A. 87; Sturtevant Co. v. Champion Fibre Co., 232 F. 1 (C. C. A. 6); United Press Associations v. National Newspapers Association, 254 F. 284 (C. C. A. 8); Clark v. Sidway, 142 U. S. 682, 12 S. Ct. 327, 35 L. Ed. 1157; Koenigsberger v. Richmond Silver Mining Co., 158 U. S. 41, 15 S. Ct. 751, 39 L. Ed. 889.

Whether or not there was a contract which had been breached was a question for the jury and it found for the plaintiff. Under the evidence, the plaintiff was entitled to $8,448.16 with interest, if he was entitled to anything. The verdict of the jury was excessive, and it was a matter of simple mathematical calculation to determine the amount of interest from December 23, 1924, to April 3, 1929. We do not think that the trial judge erred in reducing the verdict.

The appellant says it was error to permit the plaintiff to testify as to the amount of dye produced and commissions earned because he did not personally keep the records.

The correctness of the records or interrogatories giving these figures was virtually admitted. At least, there is no denial that they are correct. But in addition to the testimony of the plaintiff, Nathan Koenigsberg, chemist for defendant corporation, testified that he kept a record of the production of the department of which the plaintiff was in charge and that the testimony of the plaintiff was correct as to the amount produced and commissions. Furthermore, the defendant itself later introduced the...