Holcomb Co. v. Clark

• Decision Date: 19 December 1912
• Citation: Holcomb Co. v. Clark, 85 A. 376, 86 Conn. 319 (Conn. 1912)
• Parties: HOLCOMB CO. v. CLARK et ux.
• Court: Connecticut Supreme Court

85 A. 376

86 Conn. 319

HOLCOMB CO.

v. CLARK et ux.

Supreme Court of Errors of Connecticut.

Dec. 19, 1912.

Appeal from Court of Common Pleas, New Haven County; Earnest C. Simpson, Judge.

Action by the Holcomb Company against John C. Clark and wife.From a judgment for defendants, who counterclaimed, plaintiff appeals.Affirmed.

In the early spring of 1910the plaintiff, a keeper of a public garage, and the defendants, owners of an electric automobile, entered into an agreement whereby the former undertook to repaint and refurnish the automobile and to supply and install therein new batteries capable of a prescribed mileage for the sum of $250, and to store and care for it, to keep its batteries charged as required for use, and to deliver and call for it at the defendants' house when requested for the further sum of $30 per month.The plaintiff seeks to recover a balance of $291.73, claimed to be due for services rendered and supplies furnished under this contract from the time it was made to the early part of November.The charges upon the bill of particulars amount to $498.23; the credits to $188.60.

The defendants in their answer admit the correctness of certain of the charges, amounting to $100.45, and the credits, but deny the propriety of the remaining charges.They also set up by way of counterclaim that the batteries installed did not comply with the guaranty, that the care given to the car after its renovation was so careless and negligent, and the lack of attention in its care and the recharging of its batteries such that it became greatly damaged, its parts, paint, and batteries greatly injured, and it rendered unfit for use, so that by reason of these results of the plaintiff's careless and negligent conduct they were compelled to, and did, expend large sums amounting to $600 in repair work to put and keep the automobile in proper condition for use, and to correct the errors and shortcomings of the plaintiff in respect to that which it had undertaken to do, and the further sum of $100 for other conveyances in place of it when it was unfit for use.

The jury returned a verdict in favor of the defendants for $264.51.Upon the plaintiff's motion to set it aside, the court entered its order that it be set aside unless the defendants filed a remittitur of $100.Such remittitur was thereupon filed, and judgment entered for $164.51.

Henry G. Newton and Ward Church, both of New Haven, for appellant.

Robert C. Stoddard, of New Haven, for appellees.

PRENTICE, J.(after stating the facts as above).The plaintiff complains of the refusal of the trial court to set aside the verdict and its rendition of judgment thereon after a remittitur of $100 had been filed.Several reasons are assigned in support of this position, to wit: (1) That the court in allowing the verdict to stand, provided a remittitur of $100 was filed, assumed the province of the jury; (2) that there was no possible way in which the sum of $164.51 could have been arrived at without reckoning a return of sums which had been paid, no claim for which was made in the counterclaim; (3) that "the court undertook to assume that the jury found all the claims of the defendants to be justified, whereas their general verdict shows that they did not pass or agree upon any particular claims"; and (4) that a verdict for the amount of the judgment would not have been justified by the evidence.

That the court acted within its province in granting the motion to set aside the verdict unless a remittitur should be filed, and in entering up judgment upon the amount of the verdict, less the portion of it remitted, is well settled.Allen v. New London, 85 Conn. 611, 612, 83 Atl. 1021;Noxon v. Remington, 78 Conn. 296, 300, 61 Atl. 963.

The second of the claims stated above is not tenable.The defendants were not seeking the return of any payment they had made, and there is not the slightest indication in the record either that the jury in their original verdict undertook to make, or that the court in its judgment made, any such return.The total amount of the defendants' payments, a matter upon which there was no dispute, was $188.60.The record makes it quite inconceivable that the plaintiff's claim for services rendered and supplies furnished,...