Opinion
July Term, 1903.
F.A. Robbins and James A. Parsons, for the appellant.
Milo M. Acker, for the respondent.
Counsel for the respondent urges that it is possible to interpret the evidence, when considered as a whole, in such manner as to make the verdict of the jury consistent, and our attention is called to some apparently casual statements made by a witness called by the defendant, to the effect that the term of employment commenced at a later period than testified to by the parties. From a careful examination of the evidence we think it is not susceptible of such interpretation. The parties by their evidence agreed as to when the employment commenced. They agreed as to the amount which had been paid by the defendant on account of the services rendered by the plaintiff, and the evidence to which attention has been called is not sufficient to raise an issue of fact as to those questions. We, therefore, must assume that upon the evidence the jury was only entitled to render one of two verdicts — either a verdict in favor of the plaintiff for substantially $900, or a verdict in favor of the defendant for substantially no cause of action, and that the evidence did not in any sense support the verdict rendered.
Parties to a litigation, the defendant as well as the plaintiff, are entitled to have the issues submitted to the jury decided solely upon the evidence, and either party has just cause for complaint if that is not done. In the case at bar the defendant was entitled to have the jury determine whether plaintiff's rate of compensation was forty dollars or twenty-five dollars per month, that being the only issue which was properly before them for consideration; and he was entitled to have that issue determined uninfluenced by any plan of compromise as to the amount which should be awarded as a result of the decision upon that issue. The verdict rendered was clearly a compromise, and whether or not it unfavorably affected the defendant it is impossible to say. It is sufficient that it was not justified by the evidence, and, therefore, the judgment entered thereon should be reversed.
We think the rule is correctly stated in Oliver v. Moore (12 N.Y. Supp. 343), in which the court said: "The jury are to be guided by the evidence. They cannot guess at an amount which should be due to the plaintiff. They must find their verdict upon the evidence, and upon the evidence alone; and if there is no evidence to support their verdict it has no foundation and must fall."
In the case of Bigelow v. Garwitz (15 N.Y. Supp. 940) the amount claimed and liquidated was $224.80, and the jury rendered a verdict for $100. The court said: "The jury rendered their verdict in favor of the plaintiff for $100. It was properly set aside. It was in direct contravention of the instructions of the court, and was manifestly the result of a compromise. It was a verdict which the jury had no right to render, and which the court might well have set aside on its own motion."
To the same effect is the case of Powers v. Gouraud ( 19 Misc. Rep. 268).
Upon principle and upon authority as well, we think the judgment and order appealed from should be reversed and a new trial granted.
All concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.