Stetson v. Stindt, 2742.

• Decision Date: 25 February 1922
• Docket Number: 2742.
• Parties: STETSON v. STINDT et al.
• Court: U.S. Court of Appeals — Third Circuit

279 F. 209

STETSON v. STINDT et al.

No. 2742.

United States Court of Appeals, Third Circuit.

February 25, 1922

Harry P. Felger, Graham C. Woodward, and Maurice Bower Saul, all of Philadelphia, Pa., for plaintiff in error.

Robert W. Archbald, Jr., and Scott, Van Dusen, Archbald & Johnson all of Philadelphia, Pa., for defendants in error.

Before WOOLLEY and DAVIS, Circuit Judges, and ORR, District Judge.

WOOLLEY Circuit Judge.

This is an action on a promissory note brought by the payees citizens of the State of Nevada, against one of five makers a citizen of the State of Pennsylvania. The statement of claim tersely recites the note, admits sundry payments on account of principal and makes demand for the balance with interest. At the trial the plaintiffs (defendants in error) proved the note and rested. The defendant (plaintiff in error), by averments of his pleading and later by evidence to support them, raised three questions: Whether the transaction out of which the note arose was within the Statute of Frauds whether the consideration for the note was illusory; and whether it was illegal.

After judgment on verdict for the plaintiffs, the defendant sued out this writ of error, raising here the same questions tried below and three additional ones. Two of these questions are-- whether the trial court erred in admitting certain evidence of extraneous transactions between the defendant and outside parties; and whether it erred in striking off a counterclaim set up by the defendant.

As there will have to be another trial of this case at which, doubtless, the same questions will arise and again call for rulings by the court, we have given careful consideration to all assignments of error, and, finding no error in the proceeding down to the rendering of the verdict, we resolve adversely to the plaintiff in error all questions thereby raised. As the reasons which moved the trial court to its several decisions have moved this court to affirm them, and as they are of interest to no one except the litigants, no useful purpose would be served by an extended discussion of them.

There remains, however, one assignment of error directed to a matter arising after verdict which calls for discussion. It is that 'the learned court erred in entering judgment on the verdict. ' Seemingly, the assignment is based on a refusal by the court, in the exercise of its discretion, to grant the defendant's motion for a new trial, the ground of the motion being that 'the verdict was against the charge of the court. ' Laying aside for the moment the question whether the matter of this assignment is before us on this writ of error, we come to the assignment itself.

The subject matter of the assignment is nowhere better stated than by the learned trial judge when denying the defendant's motion for a new trial. He said:

'The jury were instructed that if they found in favor of the plaintiffs, their verdict should be for the balance claimed upon the note, amounting with interest to $56,990.70. Otherwise the verdict should be for the defendant. The jury, in apparent disregard of the instruction of the court, upon some basis of reasoning which is not apparent, rendered a verdict in favor of the plaintiffs in the amount of $27,439.42. The plaintiffs assigned this as one of the reasons for the granting of a new trial but withdrew the motion and were satisfied to accept the amount of the verdict. (The defendant also assigned it as a reason for a new trial.) The fact that the defendant is by the verdict required to pay less than the jury should have found against him is not a valid reason for a new trial upon his part.'

At the trial, there was no dispute about the amount due on the note. The controversy concerned only the maker's liability. There was neither raised nor submitted to the jury an issue of the amount due. Accordingly, the court instructed the jury, as the law of the case, that their verdict should be for the whole of the plaintiffs' claim or for nothing. The jury, in actual disregard of the instruction, and without any evidence in the case to support their action, split the claim and rendered a verdict for about one-half. Therefore, the question before us is-- Did the trial court err in entering judgment on this verdict?

The law on the subject is not entirely settled. There are three lines of conduct which courts in this situation follow according as they regard their duty. One is, in an effort to sustain verdicts, courts will be slow to yield to the inference of compromise by juries and will indulge all presumptions in favor of the validity of verdicts. Benedict v. Beef & Provision Co., 115 Mich. 527, 73 N.W. 802; National Bank v. Peters, 120 Mich. 518, 79 N.W. 891. Another meets the question frontally and is to the effect that, when instructed that the verdict shall be for all or nothing and the jury renders a verdict for something less than all, the verdict will be sustained on the theory that the losing party, not being injured, cannot be heard to complain that the verdict is too small. Roberts v. Rigden, 81 Ga. 440, 7 S.E. 742; Fischer v. Holmes, 123 Ind. 525, 24 N.E. 377; Coutrakon v. Passow, 193 Ill.App.

447 Coyle v. Gorman, 1 Phila. 326; Blackburn v. Young, 16 Pa.Dist.R. 191. The third is based on the broad propositions of law that a verdict which is contrary to the law of the case or which is not sustained by evidence in the case must be set aside. On this general law some courts have squarely met the question and have held that an instruction on the measure of damages is an instruction on the law, that a verdict by the jury in disregard of such instruction calls for a new trial, and that, under these circumstances, refusal by the trial court to grant a new trial constitutes reversible error. Wilson v. Whittaker, 5 Phila. (Pa.) 358; Hunt v. Bruner, 6 Phila. (Pa.) 204; Peterson v. Patrick, 126 Mass. 395; Holcombe v. Reynolds, 200 Ala. 190, 75 So. 938; Johnson v. Richardson, 9 Ga.App. 466, 71...