Wells v. Cox — 1 Daly (N.Y.) 515

Majority

p. 515

Thomas W. Wells v. John Cox.

Headnote

Where there is only one issue, and the intention of the jury to find for the plaintiff is manifest, the Court will, in case of a mistake by them, correct their verdict by making it conform, to their finding, and give judgment upon it accordingly. .

On the trial, the Court charged the jury that if their finding was in favor of the plaintiff, the amount duo him was six hundred and sixteen dollars and twenty-nine cents. The jury found for the plaintiff, bat forgetting the amount given by the Court, returned a scaled verdict for the plaintiff “ for the whole amount claimed and interest,”—XkM, that the Court could, on motion, correct the verdict by inserting in it the sum stated in the charge.

Appeal from an order at Special Term.

The judge on the trial charged the jury that a certain, amount, if anything, was due to the plaintiff, being the amount of the draft on which suit was brought with interest and protest fees, and that if they found for the plaintiff, they should find for him for that amount. The jury agreed upon a verdict for the plaintiff, but being uncertain as to the exact amount stated by the Court, made out a sealed verdict “ for the plaintiff for the full amount claimed and interestsupposing, according to an affidavit of all the jurors read on the motion, that the correct amount would be inserted at the opening of the Court on receipt of their verdict.

On the affidavit of the jurors to this effect the Court granted an order to show cause why the verdict should not be amended by substituting for the words “ the whole amount claimed with interest,3' the words, “ the sum of six hundred and sixteen dollars and twenty-nine centsand after hearing counsel, entered an order to that effect, and directed judgment to be-entered on the verdict as amended.

From this order the defendant appealed.

C. Bainbridge Smith, for appellant.

Wm. R. Stafford, for respondent.

p. 516

By the Court.

In submitting this case to the jury the presiding judge stated to them the amount the plaintiff was entitled to recover, if their finding was in his favor. They agreed upon a verdict in favor of the plaintiff, hut were uncertain as to the amount stated by the judge in his charge. The uncertainty was whether the sum of six hundred and sixteen, or six hundred and seventeen dollars, or thereabouts, was the amount. They found generally therefore, for the plaintiff for the full amount claimed, and the interest. On an application made to the judge after the jury had been discharged, an order was made amending the verdict, so that it should read as follows, “ verdict for the plaintiff for the sum of six hundred and sixteen dollars and twentj'-nine cents,” that being the sum which the judge instructed them was the extent of the plaintiff’s claim. There was but one issue in the action, and the verdict, therefore, covered the whole subject in controversy. The intention of the jury was to find a verdict for the amount stated by the judge, and they have so deposed. The intention being manifest, and the case upon the application to ‘ amend being clear, the Court had the power to give judgment upon the substantial finding of the jury (Hawkes v. Crofton, 2 Burr., 698 ; Rockfeller v. Donnelly, 8 Cow., 652 ; Petre v. Hanway, 3 Term Rep., 659 ; Cheetham v. Tillotson 4 Johns., 508 ). The objection to the amendment is technical, and is not sustained by any element which called upon the Court to hesitate to exercise the power of making the verdict in language conform to the finding of the jury. There is no doubfc'that the whole case has been disposed of by the jury and the Court, and the amendment should be allowed (Burhans v. Tibbitts, 7 How. Pr. Rep., 21 ). The point in issue can he concluded out of the finding, and the Court will work the verdict into form and make it serve (Foster v. Jackson, Hobart, 54, a). The order appealed from should be affirmed with ten dollars costs.

Order affirmed.