Tou Velle v. Farm Bureau Co-op. Exch.
| Decision Date | 07 October 1924 |
| Citation | 112 Or. 476,229 P. 83 |
| Parties | TOU VELLE v. FARM BUREAU CO-OP. EXCH. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.
Action by F. L. Tou Velle against the Farm Bureau Co-operation Exchange, an Oregon corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
This is an action based upon a contract of sale by plaintiff, and purchase by defendant, of 753.5 bushels of wheat at the agreed price of $2.33 per bushel, f. o. b. Portland, Or which amounted to the price of $2.13 per bushel, f. o. b Medford, Or. Plaintiff alleges that the wheat contracted for was delivered to the defendant, and demands judgment for a balance of the purchase price, amounting to $786.28. A verdict was rendered in favor of plaintiff for $393.14. From a resulting judgment defendant appeals.
Don R Newbury, of Medford (Newbury & Newbury and C. M. Thomas, all of Medford, on the brief), for appellant.
G. M Roberts, of Medford, for respondent.
There is an issue raised by the pleadings as to the delivery of the wheat by the plaintiff in accordance with the contract, and testimony was introduced pro and con upon that issue. There was no issue upon the trial, and no dispute between the parties to this cause as to the terms of the contract respecting the amount and price of the wheat covered by the contract, and no question of fact concerning them for the jury to decide.
It was agreed between the parties that the plaintiff deliver to the defendant 753.5 bushels of wheat, which at the agreed price of $2.13 per bushel amounted to $1,604.96. It was also undisputed that the defendant paid the plaintiff $818.68, leaving a balance remaining unpaid of $786.28. It was also claimed in the pleadings of defendant, and testified in regard to by the respective parties, that the payment of the amount mentioned by the defendant to the plaintiff was in full settlement of the plaintiff's demand. Defendant also contended that after making the contract the same was canceled and annulled. The jury failed to find that such settlement had been made or that the contract had been canceled.
The issues in regard to the cancellation of the contract and the settlement of the controversy between the parties were submitted to the jury under proper instructions to which no objections were made. The court instructed the jury, after calling their attention to the form of the verdict, as follows:
"Now, if you find for the plaintiff, you will fill in the amount of his recovery, which would be $786.28."
After the jury had retired and deliberated for some time, and, not being able to agree upon a verdict, by their foreman they made the following inquiry of the court:
In answer to the inquiry the court noted on the letter thus: "Reach such verdict as you think is right." As we understand this last information to the jury, they were authorized to reach a just verdict as might be warranted under the prior instructions, the admissions in the pleadings, and the evidence in the case. As noted, the jurors returned the verdict for one-half of the amount due to the plaintiff on the contract, if there was anything due.
The defendant moved to set aside the judgment and for a new trial on the grounds, among others: (1) Insufficiency of the evidence to justify the verdict and that it was against the law. (2) The verdict of the jury and the judgment of the court were not in accordance with the law applicable to the pleadings. (3) Misconduct of the jury in dividing the amount they were instructed to return in favor of the plaintiff, if they found for plaintiff, and returning verdict for one-half thereof.
It is contended on behalf of the defendant that the compromise verdict rendered in the case is invalid and not supported by any evidence; that the verdict should be based upon and consistent with the issues in the case, and be decisive upon the point at issue. The defendant cites and relies upon, among others, the following authorities: Brickwood-Sackett, Trial by Jury and New Trials, vol. 1, § 274; Cyc. vol. 38, 1925, and cases cited under notes 72-74; Falkenberg v. O'Neill (Sup.) 88 N.Y.S. 378; Holt v. Van Eps, 1 Dak. 206, 46 N.W. 689; Muller v. Jewett, 66 Cal. 216, 5 P. 84; Moore v. Moore, 67 Tex. 293, 3 S.W. 284; Patterson v. U.S., 2 Wheat. (15 U. S.) 221, 4 L.Ed. 224; Walter A. Wood Mow. & Reap. Mach. Co. v. Hancock, 4 Tex. Civ. App. 302, 23 S.W. 384. As a general rule, where the amount of recovery, if any, is measured by the terms of the contract, the question of amount, as distinguished from that of right of recovery, should not be left to the jury. 13 C.J. 791, § 1017; 29 Cyc. 818; 38 Cyc. 1525.
On the part of plaintiff it is submitted that a new trial for inadequacy of damages for a breach of contract will not be granted on the application of the party against whom they are awarded, citing 29 Cyc. 848; Evans v. Koons, 10 Ind.App. 603, 38 N.E. 350; Cormier v. Martin Lbr. Co., 98 Wash. 463, 167 P. 1105; Ross v. Rose, 109 Wash. 273, 186 P. 892; Smith v. Dev. Co. (Tex. Civ. App.) 195 S.W. 220; Smith v. Lee, 82 Ga. 674, 10 S.E. 201; Wright v. Griffey, 44 Ill.App. 115; Wolf v. Goodhue Fire Ins. Co., 43 Barb. (N. Y.) 400, affirmed in 41 N.Y. 620; Tompkins v. Lamb, 121 A.D. 366, 106 N.Y.S. 6; Kelley v. Peeples, 192 Mo.App. 435, 182 S.W. 809.
In the present case the amount of recovery, which was measured by the terms of the contract for the sale of wheat, was not according to the instructions of the court submitted to the jury, but the jury was instructed that, if they found for the plaintiff, to find in the amount alleged and admitted to be due upon the contract, if there was anything due. The jury, however, failed to observe the instructions of the court, and their verdict was a compromise as to the amount thereof.
It is well settled that the instructions given by the court to the jury, without objections or exceptions thereto, become the law of the case, and it is consequently the legal duty of a jury to comply with such instructions, and, if they fail to do so, the court may set aside the verdict. 20 R. C. L. 272, § 55. Accordingly it is the general rule that, where the court instructs the jury as to a specific amount of a party's liability, if he is found to be liable at all, and the jury disregards the instructions and brings in a verdict for a different amount, it is the duty of the court to set aside the verdict and grant a new trial. See note to Stetson v. Stindt, 23 A. L. R. 305, and authorities there cited. The syllabus to Stetson v. Stindt (C. C. A.) 279 F. 209, 23 A. L. R. 302, reads as follows:
"To refuse a new trial where the jury awards less damages than instructed to do by the court, without evidence to support their action, is reversible error, although the error...
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