DUNNING V. CROFUTT

483

SAMUEL S. DUNNING, TRUSTEE, v. FREDERICK B.
CROFUTT.

SUPREME COURT OF ERRORS OF CONNECTICUT, 1908.

81 Conn. IOI

Replevin for one gray mare, three colts and a quantity of hay, corn and tobacco, attached by the defendant officer as the property of William W. Foote in an action in favor of Edward E. Harrison and replevied by the plaintiff, Samuel S. Dunning, as trustee under the will of Sherman Foote, who had devised his farm to the plaintiff in trust, with a direction that his son William W. Foote should be allowed to live on the farm. The verdict was for the plaintiff for all the property except the gray mare, which was by the verdict directed to be returned to the defendant. The defendant having moved for a new trial, the court ordered that the verdict should be set aside unless the plaintiff surrendered the three colts to the defendant. The plaintiff having failed to do so, the verdict was set aside and plaintiff appealed.19

HALL, J.: Without repeating here the evidence before us regarding the purchase of the gray mare and the payment of the expense of getting her colts, it is sufficient to say of it, that we deem it ample to sustain the conclusion manifestly reached by the jury in ordering the gray mare returned to the defendant, that she was not purchased by the plaintiff; that he had no interest whatever in her, but that she was bought and placed upon the farm by William W. Foote; and that the question of the title to the mare having been thus settled by the verdict, and, evidently, in the only manner thought

(1904); Coalmer v. Barrett, 61 W. Va. 237, 56 S. E. 385 (1907); Bond v. Penna. R. Co., 218 Pa. 34, 66 Atl. 983 (1907); Black v. Virginia P. C. Co., 106 Va. 121, 55 S. E. 587 (1906); Scannell v. Boston E. R. Co., 208 Mass. 513, 94 N. E. 696 (1911); Bauer v. Montague M. Co., 163 App. Div. (N. Y.) 589, 148 N. Y. S. 990 (1914); Maynard v. Des Moines, 159 Iowa 126, 140 N. W. 208 (1913). Where, however, there is a conflict of evidence, a verdict against the bare preponderance of evidence will not be disturbed on that ground alone. Camden v. Cowley, 1 Wm. Bl. 417 (1763); Swain v. Hall, 3 Wils. C. P. 45 (1770); Peters v. Phoenix Ins. Co., 3 Serg. & R. (Pa.) 25 (1817); Rice v. Welling, 5 Wend. (N. Y.) 595 (1830); Bloom v. Crane, 24 Ill. 48 (1860); Commissioner for Railways v. Brown, L. R. 13 App. Cas. 133 (1887); Shepherd v. Camden, 82 Maine 535, 20 Atl. 91 (1890); Pringle v. Guild, 119 Fed. 962 (1903); Lewis v. Roby, 79 Vt. 487, 65 Atl. 524 (1907); Boyd v. Bangor R. &c. Co., 111 Maine 332, 89 Atl. 139 (1913); Cardwell v. Norfolk & W. R. Co,. 114 Va. 500, 77 S. E. 612 (1913); Florida East Coast R. Co. v. Hayes, 66 Fla. 589, 64 So. 274 (1914).

Under codes authorizing new trials where the verdict is "contrary" to the evidence, a new trial may be granted where the verdict is not sustained by sufficient evidence. "Both forms of expression mean when the weight of the evidence, as a whole, is not sufficient to justify the verdict." Knote v. De Shirley, 84 Kans. 738, 115 Pac. 539 (1911); Ferguson v. Gill, 74 Hun 566, 26 N. Y. S. 596, 57 N. Y. St. 213 (1893); Krakower v. Davis, 20 Misc. 350, 45 N. Y. S. 780 (1897).

19The statement of facts is abridged from the opinion of the court, a part only of which is printed.

by the trial judge to be justifiable upon the evidence, it followed, in the absence of evidence showing that any other than the general rule should be applied, that the ownership of the dam carried the title to the three colts which were conceded to be her offspring. 2 A. & E. Encyc. of Law (2d ed.), 348. The trial court, therefore, committed no error in holding that the verdict awarding the three colts to the plaintiff was against the evidence.20

But the plaintiff has no good ground to complain because he must retry the question of ownership of property which the jury has properly found belonged to him. He could have avoided such retrial if he had surrendered that which the jury unlawfully awarded to him. To secure a further opportunity of contesting the question of ownership of the colts he was willing to risk the expense and uncertain result of a new trial of the entire case.

There is no error.

SAVERY v. BUSICK.

SUPREME COURT OF IOWA, 1861.

II Iowa 487.

On the twelfth of October, 1857, defendant confessed a judgment before the clerk of the district court for the sum of three hundred and nine dollars and fifty cents, being the supposed balance due the plaintiff on a fifteen hundred dollar note, dated the twentyfirst of July and payable in six months. It was afterwards ascertained that a mistake had been made in the computation of interest

In setting aside a verdict as "contrary to law," the phrase "means that the verdict is one which the law does not authorize the jury to render upon the evidence presented to them. The phrase refers to the act of the jury in drawing from the evidence a conclusion which is not justified by it, and for that reason may be said to be contrary to the law. It does not refer to any act of the court in giving to the jury directions upon which their verdict is to be based, for, although such verdict may be contrary to the law in the sense that it is not authorized by the law, yet, it is not an error for which the jury are responsible, but it is an error for which the court is responsible, but to be pointed out by an exception." Swartout v. Willingham, 31 Abb. N. Cas. 66, 6 Misc. 179, 26 N. Y. S. 769 (1893); Bryant v. Comm. Ins. Co., 30 Mass. 543 (1833); Farrant v. Olminus, 3 B. & Ald. 692 (1820); Gregory v. Tuffs, 2 Dowl. P. C. 711 (1834); Welsh v. Dusar, 3 Binn. (Pa.) 329 (1811); State v. Layton, 3 Harr. (Del.) 469 (1842); Doe v. McDonald, 2 U. C. Q. B. 267 (1845); Blake v. Shaw, 10 U. C. Q. B. 180 (1852); Hoffman v. Bosch, 18 Nev. 360, 4 Pac. 703 (1884); Wilson v. Whittaker, 5 Phila. (Pa.) 358 (1864); Lehr v. Brodbeck, 192 Pa. St. 535, 43 Atl. 1006, 73 Am. St. 828 (1899); Irwin v. Thompson, 27 Kans. 643 (1882); Perdue v. Bailey, 53 Ga. 333 (1874); Merrill v. Bassett, 97 Maine 501, 54 Atl. 1102 (1903); Cary Mfg. Co. v. Malone, 131 App. Div. 287, 115 N. Y. S. 632 (1909); Massillon Sign & Poster Co. v. Buffalo Lick Springs Co., 81 S. Car. 114, 61 S. E. 1098 (1908); Wilson V. Tuttle, 6 Ga. App. 83, 64 S. E. 290 (1909); Fritz v. Sayre, 77 N. J. L. 236, 72 Átl. 425 (1909); Morgan v. Los Angeles Pac. Co., 13 Cal. App. 12, 108 Pac. 735 (1910); Pugh v. Bluff City Excursion Co., 177 Fed. 399 (1910); Buck v. Buck, 122 Minn. 463, 142 N. W. 729 (1913); Smyth v. Tennison, 24 Cal. App. 519, 141 Pac. 1059 (1914).

on said note, and that the true balance due was $384.50, being seventy-five dollars more than the amount for which the judgment was confessed. This last named sum plaintiff alleges that the defendant afterwards made a parol promise to pay. Failing to do so, a suit was brought upon said promise to recover the seventy-five dollars before a magistrate. A trial being had, a judgment was rendered in favor of plaintiff for the amount of his claim. The cause was taken by appeal to the district court, and on a second trial there, the plaintiff claimed to have shown the mistake of seventy-five dollars in the confession of the judgment aforesaid, and the defendant's promise to pay the same, and asked the court to say to the jury that upon this state of facts the plaintiff was entitled to recover, that a moral consideration is sufficient to support a promise in cases where there was originally a sufficient valuable consideration upon which action could have been sustained, notwithstanding some positive rule of law might exempt the party from liability.

The court refused such instruction, and at the instance of the defendant told the jury in substance that a mistake in the confession of the judgment spoken of was no sufficient consideration in law to support a promise to pay the amount of the mistake; that such mistake could only be rectified by appeal to the Supreme Court, or motion to the court rendering the judgment, or by proceeding in equity; and that if the jury should find from the evidence that a judgment had been rendered in the district court upon a note which constituted any part of the claim or promise sued upon, they should find for the defendant.

The jury in their retirement gave a verdict for plaintiff directly against the instructions of the court, which, upon motion, was set aside, and a new trial granted. From this ruling of the court the appeal comes.

Lowe, C. J.: Whatever may be our view of the law of this case, it is impossible for us to express it, or consider the questions presented, without going behind the action of the jury in trampling upon the authority of the court, and thereby giving some countenance to their assumption. This we are unwilling to do even by the slightest implication.

It is no more competent for the jury to usurp the powers of the court, than it is for the court to interfere with their province in the ascertainment of facts. And when the jury, in this case, arrogated to themselves the right to determine the law in direct opposition to the instructions given them by the court, they were guilty of a flagrant abuse of their duties and obligations; and we will not review this case until it is tried upon the law as it shall be expounded by the court and not by the jury.

Affirmed.21

"Accord: Flemming v. Marine Ins. Co., 4 Whart. (Pa.) 59 (1839); Wood v. Cox, 17 C. B. 280 (1855); Rogers v. Murray, 3 Bosw. (N. Y.) 357 (1858); Bunten v. Orient Ins. Co., 4 Bosw. (N. Y.) 254 (1859); Moffatt v. Thompson, 17 N. B. 516_(1877), semble; Paul v. Casselberry, 12 Phila. (Pa.) 313 (1878); Dent v. Bryce, 16 S. Car. I (1881); Crane v. Chicago & N. W. R. Co., 74 Iowa 330, 37 N. W. 397, 7 Am. St. 479 (1887); Standiford

(b) Judgment Non Obstante Verdicto.22

W. H. SHIVES v. ENO COTTON MILLS.

SUPREME COURT OF NORTH CAROLINA, 1909.

151 N. Car. 290.

Civil action for personal injuries. The plaintiff, a "boss dyer," fell through a hole in the dyeing department of defendant's mill, made by the removal of two planks by workmen who were making repairs. On the trial the defendant moved for a nonsuit on the ground (1) of want of knowledge of the defect on the part of the defendant, (2) that the injury was caused by a fellow servant and (3) that the plaintiff was guilty of contributory negligence. The motion was denied, but the trial judge stated that he was doubtful as to the plaintiff's right to recover, upon the whole evidence, and would reserve that question to be passed upon after verdict. The jury having found the issues submitted to them in favor of the plaintiff and assessed his damages at $3,000, the court rendered judgment, "being of opinion, upon the whole record, that plaintiff is not entitled to recover, non obstante veredicto, the action is dismissed." Whereupon the plaintiff appealed.23

BROWN, J.: In entering a judgment non obstante veredicto for the defendant we think the learned judge below misconceived the usages and practice of the courts in respect to such judgments. At common law they were never rendered for a defendant.

The usual definition of a judgment non obstante is “a judgment entered by order of the court for the plaintiff in an action at law, notwithstanding a verdict for the defendant." 2 Tidd. Pr. 922; Rap. & L. Law Dict.; Black Law Dict.

v. Green, 54 Nebr. 10, 74 N. W. 263 (1898); Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714 (1895); McAllister v. Rocky Fork C. Co., 31 Mont. 359, 78 Pac. 595 (1904); Fleming v. L. & N. R. R. Co., 148 Ala. 527, 41 So. 683 (1906); Kaplan v. Shapiro, 53 Misc. 606, 103 N. Y. S. 922 (1907); Lynch v. Snead Architectural Works, 132 Ky. 241, 116 S. W. 693 (1909); Webber v. Jonesville, 94 S. Car. 189, 77 S. E. 857 (1913); Wallace v. Weaver, 47 Mont. 437, 133 Pac. 1099 (1913). Contra: Van Vacter v. Brewster, 9 Miss. 400 (1843); Peck v. Land, 2 Ga. 1, 46 Am. Dec. 368 (1847); Cochrane v. Winburn, 13 Tex. 143 (1854); Wellborn v. Weaver, 17 Ga. 267, 63 Am. Dec. 235 (1855); Todd v. Liverpool Ins. Co., 18 U. C. C. P. 192 (1868); Pittsburgh C. C. R. Co. v. Ives, 12 Ind. App. 602, 40 N. E. 923 (1895); Watts v. Norfolk & W. R. Co., 39 W. Va. 196, 19 S. E. 521, 23 L. R. A. 674, 45 Am. St. 894 (1894); Galligan v. Woonsocket S. R. Co., 27 R. I. 363, 62 Atl. 376 (1905); St. Louis & M. R. Co. v. Dooley, 77 Ark. 561, 92 S. W. 789 (1906) semble; Luken v. Lakeshore & M. R. Co., 248 Ill. 337, 94 N. E. 175 (1911); Tousley v. Pacific E. Co., 166 Cal. 457, 137 Pac. 31 (1913).

See the cases and notes in Ames's Cases on Pleading (1st ed.) 275; (2d ed.) 264; 1 Chitty on Pleading (16 Am. ed.) 688; Stephen on Pleading (9th Am. ed.) 97; Gould on Pleading (Will's ed.) 171; 14 Am. Law Rev. 494. 23 The statement of facts is derived, in part, from the opinion of the court, a part only of which is printed.

SHIVES V. ENO COTTON MILLS

487

At common law a judgment non obstante veredicto could be entered only when the plea confessed the cause of action and set matters in avoidance which were insufficient, although found true, to constitute either a defense or a bar to the action. In such case the plaintiff was entitled to a judgment in his favor, notwithstanding a verdict for the defendant. Cotton Mills v. Abernathy, 115 N. Car. 403; Walker v. Scott, 106 N. Car. 57; Riddle v. Germanton, 117 N. Car. 387.24

The practice was adopted, says Judge Pearson, to discourage sham pleas by the defendant. Moye v. Petway, 76 N. Car. 329.

Hence it follows that at common law a judgment non obstante could only be granted upon motion of the plaintiff-never for a defendant-and that its use was consequently very restricted.

This rule, however, has been relaxed in many jurisdictions, especially where counterclaims are pleaded, and where the code system prevails, and it is held that such judgment may be rendered on the pleadings for either party entitled to it, irrespective of the verdict. II Encyc. Pl. & Pr. 914.25

In no case, however, can such judgment be rendered for any party, except when the pleadings entitle the party against whom the verdict was rendered to a judgment. Grant v. Insurance Co., 76 Ga. 575; Willoughby v. Willoughby, 51 E. C. L. 722; Gregory v. Brunswick, 54 E. C. L. 481; McFerran v. McFerran, 69 Ind. 29; 11 Encyc. Pl. & Pr. 914, and cases cited.28

--

"2 Tidd's Pr. (9th ed.) 920; Broadbent v. Wilks, Wiles 360, 364 (1742); Burdick v. Green, 18 Johns. (N. Y.) 14 (1820); Dewey v. Humphrey, 5 Pick. (Mass.) 187 (1827); Smith v. Smith, 4 Wend. (N. Y.) 468 (1830); Roberts v. Dame, 11 N. H. 226 (1840); Shreve v. Whittlesey, 7 Mo. 473 (1842); Bellows v. Shannon, 2 Hill (N. Y.) 86 (1841); Berry v. Borden, 7 Blackf. (Ind.) 384 (1845); Mallory v. Lamphear, 8 How. Pr. (N. Y.) 491 (1853); Williams v. Anderson, 9 Minn. 50 (1864); Lough v. Thornton, 17 Minn. 253 (1871); Hyer v. Vaughn, 18 Fla. 647 (1882); Burnham v. New York, P. & B. R. Co., 17 R. I. 544, 23 Atl. 638 (1891); Tillinghast v. McLeod, 17 R. I. 208, 21 Atl. 345 (1891); German Ins. Co. v. Frederick, 58 Fed. 144 (1893); Virgin Cotton Mills v. Abernathy, 115 N. Car. 402, 20 S. E. 522 (1894); Stoddard v. Cambridge Mut. Fire Ins. Co., 75 Vt. 253 (1903); Fishburne v. Robinson, 49 Wash. 271, 95 Pac. 80 (1908); Shearer v. Guardian Trust Co., 136 Mo. App. 229, 116 S. W. 456 (1908); Ivanhoe Furnace Corp. v. Crowder, 110 Va. 387, 66 S. E. 63 (1909); Dalenz v. Fitzsimmons, 78 N. J. L. 618, 75 Atl. 924 (1910); Audit Co. v. Taylor, 152 N. Car. 272, 67 S. Ē. 582 (1910); Strong v. Gunning, 153 Ill. App. 182 (1910).

25

Brown v. Searle, 104 Ind. 218, 3 N. E. 871 (1885); Carl v. Granger Coal Co., 69 Iowa 519, 29 N. W. 437 (1886); Stewart v. American Exch. Nat. Bank, 54 Nebr. 461, 74 N. W. 865 (1898); Piano M. Co. v. Richards, 86 Minn. 94 (1902); Plunkett v. Detroit E. R. Co., 140 Mich. 299, 103 N. W. 620 (1905); Whitaker v. Crowder S. Bank, 26 Okla. 786. 110 Pac. 776 (1910).

26 Since judgment non obstante veredicto is entered where it appears from the record that the verdict can not be supported, the evidence can not be looked to in support of such a motion. Pittsburgh R. Co. v. Martin, 82 Ind. 476 (1882); Slivitski v. Wien, 93 Wis. 460, 67 N. W. 730 (1896); Lewis v. Foard, 112 N. Car. 402, 17 S. E. 9 (1893); Manning v. Orleans, 42 Nebr. 712, 60 N. W. 953 (1894); Plunkett v. Detroit E. R. Co., 140 Mich. 299, 103 N. W. 620 (1905); Baxter v. Irvin, 158 N. Car. 277, 73 S. E. 882 (1912); Streitweiser v. Lightbourn, 87 Conn. 527, 89 Atl. 186 (1913). But the practice in some jurisdictions permits such a judgment where all the evidence attainable has been produced and is conclusive, as a matter of law, on the merits