Opinion
April Term, 1896.
Edward C. James and Abram I. Elkus, for the appellant.
John M. Scribner, for the respondent.
The real ground upon which the verdict was set aside was that it was unsupported by the evidence. The learned trial judge evidently regarded the verdict as an improper one, to be rendered upon the evidence in the case. He refused to hear any argument upon the motion, but granted it as soon as it was made, remarking that he regarded the verdict as a present or gift to the plaintiff of $15,000, to which he had not a shadow of right, and he desired to place on record his disapproval of the verdict. He heard all the evidence, and seems to have had, at the close of the case, very decided views as to what the verdict should have been. We have examined the record and the evidence, and may have formed our judgment as to what the verdict should have been, but it must be remembered that if the case was one for the jury the verdict was not to be the verdict of the trial court or of this court, but of the jury, and the question is not whether the trial court was, or this court is, satisfied with the verdict, but whether it is a case in which the parties had a right to the judgment of twelve men as to the facts. If the verdict of a jury may be set aside in any case where the court is not satisfied with it, if the court must be satisfied as well as the jury, then the court may as well dispense with the jury altogether and make the decision itself. The jury is entirely useless and unnecessary. This is not of course the rule. When the case is one that should properly be submitted to the jury, its verdict must stand whether it is satisfactory to the court or not.
The parties have a right to try the case before a jury, and to have its judgment as to the facts, and they cannot be deprived of such right. It is only where the evidence is uncontradicted or is so preponderating in one direction that a verdict to the contrary would indicate that the jury was actuated by favor, prejudice or passion, that the court is justified in taking the case from the jury and determining the facts itself. Where there is a fair conflict in the evidence, where there are witnesses on either side whose credibility is to be determined, especially where the witnesses are parties to or interested in the action, where there are documents, papers and letters, and circumstances sworn to by witnesses, the effect of which is to be determined and the inferences from which are to be drawn, the questions of fact must be determined by the jury and not by the court. These principles of law are so well settled that no citation of authority therefor is necessary. We have only to apply them to the evidence in this case.
The defendant, by its answer and on the trial, admitted substantially all the facts alleged by the plaintiff as a basis for a recovery of the $15,000, and his recovery could only be defeated by proving the parol contract to turn over the $15,000 of stock to the defendant after it had been issued to the plaintiff, and the performance of that contract by turning over the stock. The defendant had the burden of proof upon these questions. In the absence of any proof with reference to these questions, the plaintiff, upon the other conceded facts, would have been entitled to a verdict, which the court might well have ordered. The defendant gave its proof as to the parol agreement, largely by witnesses who were interested in the event of the action, as plaintiff, who contradicted them, was also interested. The question of the credibility of all these witnesses was for the jury and not for the court.
The only agreement in writing between the parties was the one upon which plaintiff based his right of action. This was under seal, and it made no reference to any such agreement as alleged by defendant. It is said by the defendant that the contract was carried out by the issue of the certificates for 150 shares of stock, as well as the 200 shares and the indorsement of the whole by plaintiff. That he did indorse the whole is conceded, but that the transaction was an issue to, and transfer by, him of the stock under the parol agreement alleged, he denies.
It will be observed that the written agreement provided that the defendant should retain some unissued stock until certain debts, etc., were paid by the plaintiff. The retaining of the certificates for the 150 shares of stock, after they were so indorsed by the plaintiff, was not, therefore, inconsistent with the plaintiff's theory of the transaction. The defendant claims that the real consideration of the transfer of the property by the plaintiff was $20,000. The plaintiff claims that the consideration was truly stated in the contract in writing and under seal, and it is certain that the law only permitted stock to be issued in payment for property purchased at its real value. Letters written by plaintiff were put in evidence tending to corroborate defendant's theory of the case, and were proper for the consideration of the jury. The effect of all the evidence in the determination of the controverted questions of fact we think was for the jury and not for the court. We do not desire to consider or discuss the evidence in detail. It is sufficient for us to say that in our opinion there was such a conflict in the evidence that the court could not assume to determine the facts, but should have left them to be determined by the jury, and the verdict of the jury should not have been disturbed by the court.
Upon an examination of all the evidence we may say that we would have been better satisfied had the verdict been the other way. The balance of probabilities impresses us as inclining in favor of the defendant's claim. But the final preponderance in its favor upon all the evidence is not so great as to bring the case within the rule which permits a verdict to be set aside only when it is reached through partiality, passion or prejudice.
We conclude, therefore, that the order setting aside the verdict was erroneous, and it should be reversed, with costs.
VAN BRUNT, P.J., BARRETT, RUMSEY and PATTERSON, JJ., concurred.
Order reversed, with costs.