Bennett v. United Lumber & Supply Co.

• Decision Date: 15 January 1930
• Parties: BENNETT v. UNITED LUMBER & SUPPLY CO.
• Court: Connecticut Supreme Court

148 A. 369

110 Conn. 536

BENNETT v. UNITED LUMBER & SUPPLY CO.

Supreme Court of Errors of Connecticut.

January 15, 1930

Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.

Action by James E. Bennett against the United Lumber & Supply Company to recover on a negotiable note and moneys paid through mistake during a period of more than eight years tried to the jury. Verdict for plaintiff for $80.14 was set aside by the court on motion, and plaintiff appeals. Error and judgment set aside with directions.

Robert J. Woodruff and John G. Confrey, both of New Haven, for appellant.

Walter J. Walsh, of New Haven, and William H. Kingston, of Ansonia for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

WHEELER, C.J.

The action was brought in two counts; the first alleging the conversion by the defendant of a negotiable note for $2,500 belonging to plaintiff, the second alleging for more than eight years prior to the action the plaintiff had purchased goods of defendant and overpaid defendant more than $8,000 upon defendant's representation that he then was indebted to it when no such indebtedness existed. The action upon the second count was in reality an action for an accounting involving many charges and credits between the parties aggregating upwards of $50,000. The trial was a protracted one; the account a difficult one to unravel. The printed evidence consists of 366 pages of the record while there were introduced in evidence 64 exhibits. No action for an accounting, or one of this character, should be tried to the jury. It imposes upon a jury an impossible task to expect them to carry in memory the details of a case of this character. It is unfair to a litigant to have his case determined by a tribunal which cannot fulfill that duty with accuracy or justice, however intelligent and desirous of doing their full duty the tribunal may be.

The defendant's answer denied the vital issues of fact which were essential to the plaintiff's cause of action. The defendant pleaded no counterclaim.

The jury rendered a verdict for the plaintiff for $80.14. The trial court set the verdict aside because it was of the opinion that the credits to which defendant was entitled exceeded any claimed overpayments of the plaintiff, and therefore the plaintiff was not entitled to any verdict. The underlying question in a motion to set aside a verdict of this inconsiderable amount in a case of this character where no counterclaim has been filed, and no principle or question affected with a public interest involved, is not whether a wrong conclusion of the jury should be allowed to prevail but whether the state should be subjected to the large expense a new trial would involve, and whether the machinery of the court should be used for a considerable period in order to give a litigant the right to try his case over again and perhaps in another trial secure a verdict which would relieve him from paying a small judgment. This defendant has had its day in court. " The right to an appeal is not a constitutional one, nor one based upon principles of natural justice. It is but a statutory privilege." Bronson v. Mechanics' Bank, 83 Conn. 128, 133, 75 A. 709, 711; Neilson v. Perkins, 86 Conn. 425, 428, 85 A. 686. We have held from an early time that a new trial...