N. Star Boot & Shoe Co. v. Braithwaite

• Decision Date: 28 February 1887
• Court: South Dakota Supreme Court
• Parties: North Star Boot & Shoe Co. v. Braithwaite.

34 N.W. 68

4 Dak. 454

North Star Boot & Shoe Co.

v.Braithwaite.

Supreme Court of the Territory of Dakota.

February Term, 1887.

H. F. Miller, for appellant. Hollenback & Wright, for respondent.

FRANCIS, J.

This was an action in the nature of an action in claim and delivery, to recover the possession of certain personal property consisting of boots, shoes, etc., or the value thereof in case a delivery could not be had, and damages for the detention thereof. On the trial the jury rendered the following verdict: “We, the jury, find in favor of the defendant and against the plaintiff, and that the defendant is entitled to the return of the property mentioned and described in the complaint; or, if a return thereof cannot be had, that he recover from the plaintiff the sum of $2,700, which sum we find to have been the value of said property on the day the plaintiff took the same, viz., January 26, 1885, together with $228.37 interest thereon from January 26, 1885, to this date, April 9, 1886, at seven per cent., making in all the sum of $2,928.37.” The motion for a new trial was made, and denied pro forma by the court, without argument. April 9, 1886, judgment was rendered in accordance with the verdict.

The highest value of the goods in question, proved in the evidence, was $2,316.11. The variance between the proof as to value, $2,316.11, and the verdict of the jury fixing the value at $2,700, was not called to the attention of the court at the time the jury rendered their verdict, and before they were discharged. Such matter should always be brought to the knowledge of the court before the jury are discharged, in order that the verdict may be corrected while it is in the power of the court to have such correction made. Much unnecessary litigation and cost may be saved thereby, and, often, hardship or injustice prevented.

The judgment of the district court is reversed, and a new trial ordered, unless both parties consent to a modification of the judgment by reducing it to the sum of $2,316.11, together with interest thereon from January 26, 1885, to April 9, 1886, at 7 per cent., $195, making in all the sum of $2,511.11.

(All the justices concurring.)