Curtis v. Wheeler & Wilson Manufacturing Co. — 40 N.Y. St. Rep. 724

Majority

p. 724

George H. W. Curtis, Resp’t, v. The Wheeler & Wilson Manufacturing Co., App’lt.

(Supreme Court, General Term, First Department,

Filed October 16,1891.)

Headnote

Verdict—Weight Ce evidence.

Plaintiff testified to the effect that- defendant agreed to pay a certain sum. for a machine. His witness testified only that she did not hear its president refuse to give that amount. The making of such agreement was denied by such president, and it was contradicted by plaintiff’s letters, written subsequent to the alleged promise and long before the commencement of the action. Reid, that the verdict in favor of plaintiff was against the weight of evidence.

Appeal from judgment entered on a verdict of the-jury at circuit..

Myron Winslow, for app’lt; Howard A. Sperry, for resp’t.

I think the judgment, should be reversed and a new trial granted on the ground that the verdict of the jury, where they found, that there was a contract whereby the defendant agreed to pay plaintiff $5,000 for the machine, was against the

p. 725

weight of evidence. The plaintiff’s testimony as to such agreement is entirely uncorroborated by any other testimony.

All that Louise Cadmus, who was called for the plaintiff, testifies to was that she did not hear Mr. Wheeler refuse to give 85,000, and, so far as I can see, nobody has ever testified that Mr. Wheeler did refuse to give $5,000, the question being whether or not Mr. Wheeler did agree to pay that sum to the plaintiff.

The making of such an agreement is expressly denied by Mr. Wheeler, and his denial is corroborated by all the probabilities of the case; by the letters written by plaintiff to defendant two or three years subsequent to the alleged promise, and long before the commencement of the action; the transactions between the plaintiff and Mr. Gordon at the time the alleged settlement took place, and the fact that no claim was made for the $5,000 for a long time after the alleged contract was made.

The letters written by plaintiff to Mr. Wheeler are absolutely inconsistent with the existence of the contract claimed by plaintiff. In all of these letters the claim is made that the plaintiff is entitled to one dollar on each machine. That claim is expressly stated in the letter of April 5, 1880, and the letter of April 3, 1882.

Ho good purpose will be subserved by an extended analysis of the testimony that has led us to this conclusion. It is sufficient to say that this conclusion has been arrived at by a careful consideration of the whole testimony.

It has been held by this court, where plaintiff’s • testimony to sustain his cause of action was uncorroborated, and was contradicted by letters written by him to the defendant long before the commencement of the .action, that a verdict in favor of plaintiff will be set aside, and a new trial granted, as in such case the jury was bound to disregard the testimony of the plaintiff, and the verdict was against the- weight of evidence. See Boyd v. Colt, 20 How., 384 : Townsend Mfg. Co. v. Foster, 51 Barb., 351 ; Lynch v. Pyne, 52 How., 435 .

There was, however, no motion made to dismiss the complaint, and the question is before us on the appeal from the order denying the motion for a-new trial." That order and the judgment should be reversed, and a new trial granted, on payment of the costs of the trial, including witnesses’ fees with disbursements, with costs of this appeal to- appellant to abide the event:

Van Brunt, P. J., and Daniels, J., concur.