Goldstone v. Rustemeyer

• Decision Date: 25 April 1912
• Citation: 21 Idaho 703,123 P. 635
• Parties: SAMUEL GOLDSTONE, Appellant, v. FREDERICK RUSTEMEYER, Respondent
• Court: Idaho Supreme Court

123 P. 635

21 Idaho 703

SAMUEL GOLDSTONE, Appellant, v. FREDERICK RUSTEMEYER, Respondent

Supreme Court of Idaho

April 25, 1912

VERDICT OF JURY-EVIDENCE-INSUFFICIENCY OF-REMARKS OF COURT TO JURY-IMPROPER REMARKS-PROFESSIONAL ETHICS-ARGUMENT OF COUNSEL.

(Syllabus by the court.)

1. Evidence held insufficient to support the verdict.

2. When the question before the jury was whether a price was agreed upon for the performance of certain work, or whether the price was left open and the reasonable value thereof was left undetermined, to be settled or agreed upon after the work was completed, and the court states to the jury during the trial that the defendant is entitled to recover the reasonable value of the work, held, that such remark was reversible error, as the court there decided a question of fact that ought to have been submitted to the jury.

3. Where counsel in his argument to the jury deliberately goes outside of the evidence and states immaterial matters or matters not shown by the evidence, and attempts to incite the passion or prejudice of the jury in favor of his client, the judgment will be set aside, even though the court thereafter instructs the jury that they must pay no attention to what the counsel has said unless it affirmatively appears that the verdict was right and would have been the same in the absence of such unauthorized argument.

APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

Action to recover on an open account. Judgment for defendant. Reversed.

Judgment set aside and a new trial granted. Costs of this appeal awarded to the appellant.

W. H Casady, for Appellant.

Where counsel trespass on the domain of unproved facts instead of keeping within the bounds of legitimate argument, the verdict should be set aside. (Louisville N. R. Co. v. Orr, 91 Ala. 548, 8 So. 360; Johnson v. Slappey, 85 Ga 576, 11 S.E. 862; Grant et al. v. Varney, 21 Colo 329, 40 P. 771; Cook v. Doud, 14 Colo. 483, 23 P. 906.)

Where the verdict is manifestly against the great preponderance of the evidence, or against the clear weight of the testimony, or where the verdict is so palpably wrong as to do a manifest injustice in the case, it must be set aside. (Atchison T. & S. F. Ry. Co. v. Wagner, 33 Kan. 660, 7 P. 204; Wunderlich v. Palatine Ins. Co., 104 Wis. 382, 80 N.W. 467; Bank v. Ross, 91 Wis. 320, 64 N.W. 993; Badger v. Cotton Mills, 95 Wis. 599, 70 N.W. 687; Victor Sewing Machine Co. v. Day, 13 Neb. 408, 11 N.W. 169.) Or where it is so manifestly against the weight of evidence as to suggest that it was rendered through prejudice or passion and that injustice has been done thereby. (Aultman, Miller & Co. v. Scheele, 34 Neb. 819, 52 N.W. 817; Work et al. v. Kinney, 8 Idaho 771, 71 P. 477; 3 Cyc. 353; Helfrich v. Ogden City Ry. Co., 7 Utah 186, 26 P. 295; Keaggy v. Hite, 12 Ill. 100.)

W. N. Scales, for Respondent.

There was no objection to remarks of counsel, and the court expressly instructed the jury that they must try the case on the law and the evidence. The jury were fully instructed as to their guide in rendering a verdict. (38 Cyc. 1079 (F).)

SULLIVAN, J. Stewart, C. J., concurs. Ailshie, J., took no part in the decision.

OPINION

SULLIVAN, J.

This action was commenced to recover a balance alleged to be due on account of wares, goods and merchandise sold and delivered to the respondent by the appellant, and for moneys advanced by appellant to respondent and divers other persons upon the order of the respondent, in the total sum of $ 607.60, on which amount the appellant acknowledged a credit for work and labor performed by respondent in making a certain excavation and in laying a certain foundation for a building, for the sum and alleged agreed price of $ 356, and certain other items about which there is no dispute in this action, in the sum of $ 79.25, making a total credit of $ 435.25, and leaving a balance due appellant, after deducting said claims and setoffs, of $ 175.35, to recover which balance this action was brought.

The respondent filed his answer and counterclaim, whereby he denied that there was any contract or stipulated price for the making of said excavation and for the laying of said foundation, and avers that appellant employed him to do said work without any agreement as to the price except an implied contract that appellant would pay him what said work was reasonably worth, and alleges that said work was reasonably worth $ 620, which, with the said item of credit of $ 79.25, made, as respondent avers, a total credit of $ 699.25, and avers that there is a balance due him of $ 91.40.

The cause was tried by the court with a jury and on the trial the respondent did not dispute the account of appellant for the sum of $ 609.60, and the appellant made no denial of respondent's item of $ 79.25, so the only question in dispute on the trial was as to what the contract really was for the making of the excavation and laying the foundation for said building. The jury returned a verdict in favor of defendant for $ 91.40 and judgment was entered for that amount. A motion for a new trial was overruled, and this appeal is from the judgment and order denying a new trial.

The appellant assigns as error the insufficiency of the evidence to sustain the verdict and certain errors made by the court in the trial of said case.

(1) As the judgment must be reversed and the cause remanded, we will not enter into a discussion of the evidence, as it is clear to us that the overwhelming weight of the evidence is with the appellant and there is no substantial evidence to support the verdict of the jury. Where the verdict is manifestly against the overwhelming weight of the evidence, so as to suggest that it was rendered through bias, prejudice or passion and that injustice has been done thereby, the verdict must be set aside. (3 Cyc., pp. 352, 353; Aultman, Miller & Co. v. Scheele, 34 Neb. 819, 52 N.W. 817.)

(2) During the progress of the trial, when the question before the court and the jury was as to whether the contract for said excavation and foundation was for an agreed price, as claimed by appellant, or for its reasonable worth or value as claimed by respondent, the attorney for the respondent propounded to the respondent when he was testifying in his own behalf, the...