Statement of the Case.

THE PRESIDENT AND DIRECTORS OF THE INSURANCE COMPANY OF NORTH AMERICA, PLAINTIFF AND APPELLANT, v. MOSES GARDNER, DEFENDANT AND RESPONDENT.

VERDICT, SETTING ASIDE AS AGAINST THE EVIDENCE.

Before MONELL, Ch. J., CURTIS and SPEIR, JJ.

Heard April, 1875; Decided May 3, 1875.

Nathaniel A. Prentice, for appellant.

R. S. Newcomb, attorney, and Albert Cardozo, of counsel for respondent.

The action was to recover a premium of insurance.

The questions involved at the trial were (1) whether the person who acted on behalf of the defendant was authorized to enter into the contract which he made; (2) if not, then whether the defendant had ratified his acts.

There was evidence given on behalf of plaintiff and defendant on both of these questions; and the cause was submitted to the jury, who found for the defend

ant.

A motion for a new trial on the Judge's minutes, was made and denied, and an order denying the same entered. Judgment was entered on the verdict. Plaintiff appealed from the order and judgment.

The question involved on the appeal was whether the the evidence was such as to call for setting aside verdict.

Statement of the Case.

HELD, that it was not.

HELD ALSO (1) It is not proper to interfere with a verdict rendered, unless it would have been proper for the court to have directed a verdict the other way. (2) It is only proper to direct a verdict when there is either no such a conflict in the evidence as requires the jury to determine the dispute, or such a clear preponderance of proof on the one side as would leave a verdict on the other unsupported. (3) In the case at bar there was no such clear preponderance in favor of the plaintiff, but on the contrary such a conflict of evidence as to require the jury to determine the dispute.

MONELL, Ch. J., wrote for affirmance.

CURTIS and SPEIR, JJ., concurred.

WILLIAM H. PARSONS, et als., PLAINTIFfs and ReSPONDENTS, V. JAMES SUTTON, et al., DEFENDANTS AND APPELLANTS.

I. PROOF BY PLAINTIFF-WHAT HE MAY RELY ON. 1. On the acts and conduct of the defendant before the trial and at the trial, down to the time of the case going to the jury.

a. Thus where the issue is whether articles delivered were of sufficient weight, and the defendants proved that they weighed the articles, but failed to give any proof of a legal kind that they were less in weight than as charged for, such failure leads to the affirmation and not doubtful conclusion that the bill charged for the right weight.

II. REJECTION OF EVIDENCE.

1. Of evidence offered to disprove a fact sought to be proved by plaintiff to maintain his case, when not cause for reversal.

Statement of the Case.

a. When the fact itself is unimportant by reason of the plaintiff's case being otherwise sufficiently maintained upon the undisputed evidence.

2. Of evidence offered to prove damages-when not cause for reversal. a. When it appears that no right to damages exists.

Before MONELL, Ch. J., and SEDGWICK, J.

Heard March, 1875; Decided May 3, 1875.

Thomas Darlington, for the appellant.

John E. Parsons, for the respondent.

The action was brought to recover for goods sold and delivered, to wit, divers lots of paper.

The answer among other things set up as a counterclaim, that plaintiffs and defendants entered into an agreement, whereby plaintiffs agreed to make and furnish to defendants by a certain time a certain quantity of paper, for which defendants agreed to pay a reasonble or the market price thereof; that plaintiffs had failed to perform the agreement, and that defendants had sustained damage to the amount of three thousand dollars; but the answer did not aver any demand for performance made by defendants, or any performance, or any offer or readiness to perform on the part of the defendant.

On the trial the complaint was sustained by proof of the deliveries of paper generally, of the sending to defendants of a bill of goods, with the charges and prices particularly stated, and of a promise by defend ant to pay.

The defendant's testimony denied that they had made any promise to pay the bill as rendered, but in the course of their testimony it was shown that the bill had been received by them, and that with the exception of an item of paper alleged to have been delivered in

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Statement of the Case.

October, there was no denial that the lots of paper as specified in the bill had been delivered; the only complaint was that the various lots did not contain the number of pounds stated in the bill.

Although the defendants proved that they had weighed the different lots, yet they gave no proof as to the extent of the deficiency. The proof as to this was not definite enough to allow the defendants to ask a reduction of any specific amount. Indeed they made no such claim before the jury. None of the lots of goods were returned or attempted to be returned.

After one of defendants had on his direct examination given evidence as to the alleged promise to pay, he was cross-examined on that subject and the cross-examination was of such a character as justified on the redirect an inquiry as to all that the witness remembered on that subject, yet such inquiry on the re-direct was under plaintiff's objection excluded, and defendants excepted.

HELD, under the first proposition, and the first subdivision of the second proposition of the head-notes, that the error in this ruling did not call for a reversal.

On the trial defendant put numerous questions with a view of proving the damages alleged in the counteraction, all of which were objected to, and the objections sustained, to which defendants excepted.

There was no proof that defendants ever demanded the paper referred to in the counter-claim or that they ever offered to pay cash therefor, or that they were ever ready or able to pay therefor.

HELD, that the defendants had not shown sufficient performance, or tender of performance on his part to entitled him to damages; and, therefore,

HELD, that under the second subdivision of the

Statement of the Case.

second proposition of the head-notes, the exclusion of the evidence constituted real cause for reversal.

SEDGWICK, J., wrote for affirmance of the judgment which had been rendered for plaintiffs.

MONELL, Ch. J., concurred.

WILLIAM JOHNSON, PLAINTIFF AND APPELLANT, v. ROBERT A. WILLIAMS, EXECUTOR, DEFENDANT AND RESPONDENT.

TESTIMONY UNDISPUTED.

1. WHEN NOT TO BE REGARDED AS UNDISPUTED ALTHOUGH NOT

SPECIFICALLY CONTROVERTED.

1. When there is enough in the case to allow of its construction in connection with the other facts, and to justify the result that although the witness was in general credible yet was incorrect as to the particular testimony in question.

E. G. Where a witness swears that the work set forth in a certain bill was extra, when it is quite plain from the face of the list that it contains many items which could not have been extra work.

Before SEDGWICK and SPEIR, JJ.

Heard March, 1875; Decided May 3, 1875.

Appeal from judgment for plaintiff on report of referee.

A. S. Diossy, attorney, and M. Hand, of counsel for appellant.

S. G. Courtney, attorney and of counsel for respondent.