Majority
p. 705Thomas Mortimer, Resp’t, v. Jacob Doelger et al., App’lts. (New York Superior Court, General Term, Filed November 3, 1890.)
Headnote
Verdict—When wild not be disturbed.Where the evidence as to the question in issue was conflicting, and neither side asked the direction of a verdict, and the case was submitted to the jury under a charge which carefully guarded the rights of the parties and to which no exception was taken, the verdict cannot be disturbed.
Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendants’ motion upon the minutes for a new trial.
Michael C. Gross, for app’lts; Hugh Coleman, for resp’t
This action was brought to recover for services rendered by the plaintiff to the defendants in procuring, under an employment for that purpose, purchasers of beer manufactured by the defendants. The real issue litigated at the trial was as to the rate of compensation to which plaintiff was entitled. Plaintiff
p. 706
claimed that his agreement with the defendants was that he should receive fifty cents for each and every barrel sold through his procurement of the purchaser. According to the contention of the defendants, plaintiff was to receive fifty dollars for each customer. There was quite a conflict of evidence, direct and circumstantial, upon this issue. Neither side asked for the direction of a verdict on the ground of any alleged preponderance of the evidence, or any other ground. Both parties in effect conceded that there was sufficient evidence to require the submission of the case to the jury, and each took the chance of a favorable verdict which was to conclude the other side upon the facts, and the case was submitted to the jury under a charge which carefully guarded the respective rights of the parties and to which no exception was taken. Under these circumstances the verdict of the jury, which was for the plaintiff, cannot be disturbed. Keeler v. Barretts, etc., Dyeing Establishment, 54 N Y. Superior Ct., 369.
The judgment and order should be affirmed, with costs. Ingraham, J., concurs.