Hodgkins v. Mead

• Decision Date: 28 January 1890
• Citation: 23 N.E. 559,119 N.Y. 166
• Parties: HODGKINS v. MEAD.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 166

23 N.E. 559

HODGKINS

v.MEAD.¹

Court of Appeals of New York.

Jan. 28, 1890.

Appeal from city court of Brooklyn, general term.

RUGER, C. J., dissenting.

TRIAL-SEALED VERDICT.

1. In an action by a real-estate broker for commissions, defendant contended that payment of commissions was conditional on the completion of the contract by the purchaser, but no question was raised as to the amount. The court charged that, if the jury found for plaintiff, he was entitled to the amount sued for. A sealed verdict finding for plaintiff, without specifying the amount, was delivered, and the jury discharged. Held, that the court properly amended the verdict by inserting the amount sued for.

TRIAL-SEALED VERDICT.

2. In such case the affidavits of the jurors may be considered, to show what they intended to be understood as their verdict.

Sewall Sergeant, for appellant.

Henri Pressprich, for respondent.

PECKHAM, J.

This action was brought to recover the amount of 1 per cent. commission, as a real-estate broker, upon the sum of $80,000, being the purchase price of certain real estate owned by respondent, which the plaintiff alleged he had procured a purchaser for upon the employment of the defendant. The answer set up a special contract between the parties, by which the plaintiff was to claim and be entitled to no commissions except upon the performance by the proposed purchasers of the property of the special contract of sale entered into between them and defendant; and the answer alleged a failure by the proposed purchasers, and that on account thereof the plaintiff had not earned his commissions. This was the sole question at issue between the parties, and it was assumed and conceded that, if the plaintiff was entitled to a verdict at all, it was for the 1 per cent. upon $80,000, with interest from the time it was due. The charge of the judge to the jury was explicit upon the point, and he stated in so many words that, if the plaintiff was entitled to a verdict, he must recover his commissions upon the purchase price, with interest, amounting in all to the sum of $848. The judge further said: ‘Now, you have a single question of fact to decide,-whether you believe the testimony of the plaintiff, or the testimony of Mead, Sergeant, and Meldrum, as to this arrangement, made on the 21st day of February. If you find that there was an arrangement made that the commissionof plaintiff was conditional, then your verdict will be for the defendant, because the condition was never complied with. If, on the other hand, there was no condition, it is admitted here that the plaintiff was employed, and that he found a purchaser, and that the plaintiff would be entitled to a verdict.’ The precise amount of such verdict had already been stated by the court, and there was no dispute about it. The jury then retired on the afternoon of March 8, 1889. The time of adjournment having been reached, and the jury not having agreed, the court sent instructions to them that they might seal their verdict, and it was then agreed by the counsel for both parties that the jury need not return in the morning to deliver their verdict, and that it might be sealed and received from the jury by the officer in charge, and he should bring it into court in the morning. The jury agreed during the night, and their verdict was written out by one of their number, signed by all, sealed, and then delivered to the officer having them in charge, and thereupon they were discharged. In the morning, at the opening of the court, the officer handed the sealed verdict to the court, who passed it to the clerk, and told him to read it. The envelope was then broken, and the verdict read aloud. It was as follows, (after the title of the cause:) ‘We, the undersigned jurors, impaneled in the above-entitled action, do hereby certify that we find herein a verdict for the plaintiff.’ (Signed by each juror.) Upon the reading of the verdict, and according to the affidavit read on the part of the defendant, the court said, in substance: ‘This is what comes from letting a jury go. I will never do it again.’ The court then said to the counsel for plaintiff: ‘If you have any motion to make, I will hear it now.’ Plaintiff's counsel said he had none then, but he would like time to consider it, to which the court said, in substance, that he must make it then or not at all, and the court then continued, and said that it was a mistrial, and the counsel for defendant then withdrew from the court-room, and no permission was granted plaintiff's counsel to make any motion whatever while counsel for the defendant was in the court-room. This statement of the agreement for the sealed verdict, and for dispensing with the return of the jury, together with the recital of what took place when the verdict was opened in the morning in the court-room, is taken from the affidavit used on the part of the defendant to oppose the motion made on the part of the plaintiff to amend the verdict. No order setting aside the verdict was ever entered, and there is nothing to contradict the implication arising from all the facts that the remark of the learned judge as to the mistrial was an informal expression of a hasty opinion, upon which no proceeding was ever based, and which opinion, upon reflection, he subsequently altered. The counsel for the plaintiff, within three days of the bringing in of the verdict, and at the same term of the court, procured the affidavits of all the members of the jury to the effect that they all agreed upon a verdict for the plaintiff for the full amount claimed, and interest, but, being uncertain as to the exact amount stated by the court, made out a sealed verdict for the plaintiff, which each signed, supposing that the correct amount would be inserted at the opening of the court on receipt of their verdict; and each juror said it was his intention to find a verdict for the plaintiff for the full amount stated by the court. Upon these affidavits, and upon a copy of a charge of the judge, and upon the pleadings and the affidavit of the plaintiff's attorney, and at the same term of the court, on the 12th of March an order to show cause was granted, returnable on the 14th inst., why the verdict should not be amended by adding to the same the words, ‘for the sum of eight hundred and forty-eight dollars,’ after the words, ‘we find herein a verdict for the plaintiff.’

There is no conflict in the record as to the main facts. It is no where denied that the charge of the judge correctly stated the issue between the parties; nor is there any claim made that, if the plaintiff was entitled to recover at all, he might properly recover any other than the precise sum stated by the court. The only question in the case now before us arises upon these conceded facts, and it is simply whether the plaintiff shall have the benefit of the verdict of the jury by merely adding to its written portion the amount really agreed upon by them, and which it is conceded on all hands the plaintiff was legally entitled...