author:
By the Court, Robertson, Ch. J.
      Jones, J. (dissenting.)

text:
    James Crow, et al. plaintiffs and respondents, vs. Garret Becker, et al. defendants and appellants.
    Where the issues tried in an action to recover the residue of a fixed sum, ($1500,) for which the plaintiffs agreed to do certain work, were, whether (1,) a sum paid by the defendants to the plaintiffs exceeded 'the value of the work actually done; (2,) the defendants sustained damage by the mode in which such work was done; (3,) the work was completed within the time agreed on; (4,) the defendants sustained damage by the abandonment of such work by the plaintiffs before its completion, an inquiry by the court of a wit-mess whether the price fixed ($1500) would not be a contract for “ a rough job,” followed by a remark by it to the jury that $1500 for a building of “ those dimensions was little enough,” was likely to mislead the jury into a belief that the character of the work to be done depended upon the price, and was good ground for a new trial, where exceptions were taken by the plaintiffs to such inquiry and remark. Jokes, J. dissented.
    (Before Robertson, Oh. J. and Barbour and Jokes, JJ.)
    Heard June 13, 1867;
    decided May 6, 1867.
    This action is brought to recover a balance alleged to be due for mason-work, done under a contract between the plaintiffs and the defendants.
    The defense set up in the answer:
    1st. Payment of a sum more than sufficient to cover the value of the work actually done.
    ■ 2d. Unworkmanlike and unskillful performance, to the defendants’ damage of $400.

      3d. Non-completion within the time agreed on.
    4th. Abandonment of the work by the plaintiffs, and damages received thereby.
    On the trial the defendant Becker was called as a witness, and, among other things, asked: .“ In consequence of Mr. Crow not having the work completed by the 15th October, how much did you lose on your contract with Mr. Jones?” Which question was objected to, and ruled out. He was then asked by the court: “ $1500 would be a contract for a rough job ?” Which question was objected to, but allowed, and exception taken. He answered, “Yes, sir.” The court then remarked : “ $1500 for a building of this dimension is little enough.” To which remark the defendants’ counsel excepted. He was then asked by his counsel: “ In consequence of the delay and failure of Mr. Crow to complete the work at the time agreed on, what amount of damage did you sustain ?” Which question was objected to and excluded. The witness was then, after cross-examination, asked on his re-direct, (nothing in the cross-examination calling for the question,) “Were you acquainted with the value of rentals in that vicinity during May, 1860 ?” which was objected to. The defendants’ counsel then offered to show the loss of rents on the building from October 15 to December 6, which was excluded.
    Jonathan See, a witness on behalf of the defendants, after having testified that Becker gave him a piece of paper, which he gave to Crow, was asked: “ State the contents of that paper.” Which was objected to, on the ground that no notice had been given for its production. The objection was sustained, and exception taken.
    The parties having rested, the judge charged the jury: “ This is an action on a contract for building a house. It would seem as if the price named in the contract ($1500) would not call for a very superior class of work. But the whole case resolves itself to a question of credibility between the witnesses, of which you (the jury)' are the exclusive judges. Mr. Becker, the defendant, states that Mr. Crow abandoned the work at a certain stage, and he had to complete it. The • plaintiff testified that he. completed the work agreed on in the contract, with the assistance of men whom he employed and paid. The jury will remember the testimony of these parties, and other witnesses examined, and, as they credit either side, they will find for the plaintiffs or defendants.”
    The counsel for the defendants excepted to that part-of the charge which speaks of the price named in the contract not calling for a very superior class of work.
    The jury rendered a verdict for the plaintiffs for $438.75. The defendants moved for a new trial, which was denied. Judgment having been entered according to the verdict, the defendants appealed to the general term from the judgment and the order denying a new trial.
    On the argument of the appeal, the defendants’ counsel urged that the judge erred in his rulings above mentioned; also in the expression of the opinion above referred to; and in not charging the jury on the law applicable to the facts proved, and also urged that the verdict was against the weight of evidence.
    ' A. S. Beavy, for the appellants.

      B. JV. Waite, for the respondents.
   By the Court, Robertson, Ch. J.

Four defenses were made by the answer in this case, and of course there were as many issues to be tried by the jury. 1. Whether a sum was paid by the defendants to the plaintiffs, exceeding the work actually done by them. 2. Whether the defendants sustained damage by the unworkmanlike and unskillful performance of such work. 3. Whether,, such, work was not completed within the time agreed on; "and 4. Whether the defendants sustained damage by the abandonment of such work by the plaintiffs.

All of such issues are presumed to have been passed upon "by the jury, unless expressly withdrawn from their consideration, and all such evidence which might influence them in deciding any of such issues improperly, being illegal, should be excluded, if objected to.

In this case, a question was put to a witness (the defendant Becker,) whether the price to be paid was “ that on a contract for a rough job ?” To which the defendants’ counsel objected, and excepted to its admission. This question evidently might have had its effect on the jury, for even the learned justice, before whom the action was tried, remarked to them, “ that the price named in the contract did not call for a very superior class of work;” and the jury might have been induced to think from the admission of the evidence, that they were authorized to determine the class of work from the price paid, and were to be governed by that. It is true, the judge in charging the jury, in other respects confined his remarks to the question of abandonment. But he did not exclude from their consideration the other defenses in the action, in determining on which, .the jury might have been governed by the improper evidence already admitted, as the judge evidently was.

I do not deem it necessary in this case, to discuss the question whether, on a motion for a new trial on a case, for misdirection of the judge, it is essential that an exception should have been taken to his charge on the trial, on the point objected to on the hearing. Although Archer v. Hubbell, (4 Wend. 514,) seems to be decisive of it in the Supreme Court, sustained as it is by People v. Holmes, (5 Wend. 193,) and Hastings v. McKinley, (3 Code Rep. 10,) this court seems in Cook v. Hill, (3 Sandf. 341,) and Stoddard v. Long Island Railroad Company, (5 id. 180,) to have held differently but it seems also to have been governed by the consideration that upon the whole case, the party succeeding was entitled to recover.

But, for the error in admitting the testimony in answer to the question, whose admission was objected to, the defendants are entitled to a new trial, with costs to abide the event.

Jones, J. (dissenting.)

This action is brought to recover a balance alleged to be due for mason work done under a contract between the plaintiffs and defendants.

The defenses set up in the answer are, 1st. Payment of a sum more than sufficient to cover the value of the work actually done.

2d. Unworkmanlike and unskillful performance, to the defendant’s damage, of $400.

3d. Non-completion within the time agreed upon.

4th. Abandonment of the work by the plaintiffs, and damage occasioned thereby.

On the trial the defendant Becker was called as a witness, and, among other things, asked: In consequence of Mr. Crow not having the work completed by the 15th October, how much did you lose on your contract with Mr. Jones ?

Which question was objected to, and ruled out. He was then asked by the court: “ $1500 would be a contract for a rough job ?”

Which question was objected to, but allowed, and exception taken.

He answered: “Yes, sir.’'

The court then remarked: “ $1500 for a building of this dimension, is little enough.” To which remark the defendants’ counsel excepted.

He was then asked by his counsel: “In consequence of the delay and failure of Mr. Crow to complete the work at ■ the time agreed upon, what amount of damages did you sustain ?”

Which question was objected to, and excluded.

He was then, after cross-examination, asked on his redirect (nothing in the cross-examination calling for the . question,) “ Were you acquainted with the value of rentals in that vicinity during May, 1860?” Which was objected to. The defendants’ counsel then offered to show the loss of rents on the building from October 15 to December 6, which was excluded.

Jonathan See, a witness on behalf of the defendants, after having testified that Becker gave him a piece of paper, which he gave to Crow, was asked: “ State the contents of that paper?” Which was objected to on the ground that no notice had been given for its production. The objection was sustained, and exception taken. The parties having rested, the judged charged the jury: “This is an action on a contract for building a house. It would seem as if the price named in the contract ($1500) would not call for a very superior class of work. But the whole case resolves itself to a question of credibility between the witnesses, of which you (the jury) are the exclusive judges. Mr. Becker, the defendant, states that Mr. Crow abandoned the work at a certain stage, and that he bad to complete it. The plaintiff testified that he completed the work agreed on in the contract, with the assistance of men whom he employed and paid. The jury ‘would’ remember the testimony of these parties, and other witnesses examined, and as they credited either side, * * find for the plaintiffs or defendants.” Counsel for the defendants excepted to that part of the charge, which spoke of the price named in the contract, not calling for a very superior class of work. The jury rendered a verdict for the plaintiffs for $438.75. The defendants moved for a new trial, which was denied. Judgment having been entered according to the verdict, the defendants appeal to the general term from the judgment, and the order denying a new trial. On the argument of the appeal, the defendants’ counsel urged that the judge erred in his rulings above mentioned; also in the expression of his opinion above referred to, and in not charging the jury on the law applicable to the facts proved, and also urged that the verdict was against the weight of evidence. The questions: (1.) “ In consequence of Mr. Crow not having the work completed by the 15th of October, how much did you lose on your contract with Mr. Jones ? ” (2.) “ In consequence of the delay of Mr. Crow to complete the work at the time agreed upon, what amount of damages did you sustain?” and (3.) “Were you acquainted with the value of rentals in that vicinity during May, 1860?” were properly overruled, and the offer accompanying the last question, to show the loss of rent on the building from 15th October to 6th Decémber, was properly excluded.

The first two questions call for a decision by the witness, on mixed questions of law and fact. It is not every loss which a party may deem himself to have sustained by a breach of contract, that will be regarded as damages by the law; yet by the second question he is necessarily asked to determine how much, and what damages he is to recover, and by the first question that there was a loss by reason of non-performance by the plaintiffs. These are matters' to be determined by the jury, under direction of the judge. I think it highly improper to have a whole issue decided, both as to the law and the fact, by answers to general questions. It is true, the other side may, by a skillful' cross-examination, show precisely in what manner the witness arrives at his estimates, and thus save himself from being charged with improper items; but, as it devolves on the party claiming damages to prove them, I see no reason why it should be made easy for him by swearing to generalities, to give prima facie evidence as to the amount, and impose on the other side the difficult task of getting rid of the effect of this general oath, by eliminating through the medium of a long cross-examination, the sources of knowledge from, and the basis on which, the estimate is made, and the items composing it.

The third question, and the accompanying offer, did not go far enough. As Mr. Jones suffered the loss of rent (if there was any) the defendant could not in any event be' allowed that loss, unless he showed that he was compelled to deduct it from his contract price with Mr.' Jones. This' he did not propose to show. But there is another objection. The defendant had closed the direct-examination of• the witness; he had been cross-examined, and the defend-, ant prepared to re-open the direct, on a matter not touched on in the cross, examination. It was in the discretion of the judge either to allow or disallow such re-opening. He refused it. I see no reason for interfering with such exercise of his discretion.

The defendants’ counsel asked the following question: State the contents of that paper ? An objection to the question was sustained, and an exception taken. No notice to produce the paper had been given. To avoid the effect of this, the defendants say that the pleadings notified the plaintiffs that this paper was relied on. All that is in the pleadings on this subject, is the allegation “ that due notice was given to the plaintiff;” whether written or verbal, is not stated. It might be either, and yet be due. This allegation, surely, cannot be said to put the plaintiff on guard that a written notice is relied on. Again, the defendants say, the plaintiff in his testimony on the trial denied ever having received such notice, or having possession of it; consequently, a notice to produce would be superfluous. I do not so understand the testimony. The plaintiff" says he cannot swear that such notice was not served on him ; he only says, it was not, to his knowledge. If notice to produce had been given, he could have examined Ms papers, and have been prepared either to produce or deny that he ever had it, or admit that he had it, but lost it; or denying all knowledge of it, also deny that it is in his possession. A want of present knowledge as to the service or possession of a paper, arising perhaps wholly from not having made search for it, cannot excuse the necessity of giving a notice to produce, the object of which is to give the party so noticed an opportunity to look for the paper, and to produce it if he has it, and sees fit so to do.

A reversal cannot be had by reason of an error, (if any such there be,) in putting the question: “ $1500 would be a contract for a rough job ?” or in the court’s making the remark, “ $1500 for a building of this dimension, is little enoughor in the observation by the judge in his charge-: “ It would seem as though the price named in the contract, would not call for a very superior class of work;” because the evidence eUpited by the question, and the remarks made, had not the slightest bearing on the issue presented to the jury, and could not possibly have affected their verdict thereon. The evidence and the remarks, bore solely on the question of the value of the work done, and the degree of workmanship and skill required by the contract; while the only question left to the jury to pass on, was whether the plaintiff had abandoned the work before its completion or not.

It is urged that the verdict is against the weight of evidence. The verdict rendered was that the plaintiff had not abandoned the work, but had completed it. As this was the only matter left by the charge to their consideration, it is absurd to say they rendered a verdict upon any other; it would be more absurd to say, that because the evidence on an issue not left to them, required a verdict for the defendants, therefore, their • verdict in favor of the plaintiffs, on an issue which was left to them, is against the weight of evidence.

The only question then on this point is, whether the evidence on the subject of the abandonment of the work, is such as to call for setting aside the verdict, as being against the weight of evidence. The evidence on that point was . quite conflicting. I understand the rule to be, that when a jury have by their verdict settled such conflict of evidence, their verdict will be regarded as conclusive, and will not be disturbed, because from the written or printed testimony the court think the preponderance of evidence to be contrary to the verdict, or would have been better satisfied with a verdict the other way". This case exemplifies the soundness of the rule. Upon the printed case before me, it would be exceedingly difficult to pass on the question, while if I had presided at the time, I should probably have had no difficulty in arriving at a conclusion; which might have been in unison with the verdict, or not, as the case might be.

The jury had better opportunities for arriving at a.correct conclusion than the general term has, and it is impossible for this court to say, under the evidence in the case, that the conclusion they did arrive at was incorrect.

The remaining point raised on this appeal is, that the judge erred in-not charging the jury upon the law applicable to the facts proved. He did charge on the issue of abandonment, and correctly. He did not charge on the other issues, nor was he requested to. The defendants’, counsel not having requested a charge on the other issues, cannot now claim that there were other issues which should have been submitted to the jury. If this were a pure bill of exceptions, it is evident that the defendants could not now take such objection, simply because there is no exception which covers it. But it is a case and bill of exceptions combined, and it is claimed that the- fact of the motion being for a new trial on a case, entitles the defendants now to take this objection, although it was not taken at the trial. I think it does not, and in support of my views might rely on the cases of New York and Erie R. R. Co. v. Cook, (2 Sandf. 732;) Cook v. Hill, (3 id. 341;) Stoddard v. Long Island R. R. Co., (5 id. 180;) Jackson ex dem. Beekman v. Stephens, (13 John. 495.)

In Jackson ex dem. Beekman v. Stephens, the defendant moved for a new trial on a case. The evidence was pretty strong in favor of the defendant on the question of adverse possession. But that question was not submitted to the jury. There did not appear to have been objection made on the trial to such non-submission, nor any request preferred to have it submitted. The court' held, that it must be presumed that such defense was abandoned on the trial. This case is on quatuor pedibus with the one at. bar, and I have been unable to find any case that directly overrules it. But is based on the general proposition, that' on a motion for a new trial, made on a case, any objection may be raised, although not made at the trial. I can find no authority for this proposition. On the cpntrary, the law seems to me well settled, that no objection can be urged on a motion for a new trial on a case, which was not taken at the trial; The English practice in this respect, is laid down thus: “If the judge incorrectly reject a competent witness, or admit the evidence-of one that is incompetent; or mistakes the law, or misdirects - the jury in any respect, so that the client might be prejudiced, it is the duty of the leading counsel immediately to state the ohjection, and if he do not, the court will not, .ora motion, grant a new trial. It is imperative on counsel to object, if at all, at the time, or lose the effect of the objection, and be precluded from supporting a motion for a new trial. It is sufficient, however, to merely suggest the objection to the judge, and present the point concisely.” (Chitty’s General Practice, vol. 3, p. 915.) At the time this doctrine was laid down, there were under the English practice, two modes of correcting errors at trial. One by a motion for a new trial, which was similar to our motion for a new trial on a case, and in respect to which the above principles were laid down, and the other by bill of exceptions and writ of error, which was similar to our appeal upon exceptions. And it is stated to have been the practice of one of the learned English judges, when he thought the point raised of1 sufficient importance, not to put the party to the delay of a motion for a new trial, but to suggest the tendering of a bill of exceptions, so that a writ of error might go at once. (Chitty's General Practice, vol. 3, p. 915.) A practice which is similar to ours of ordering exceptions to be heard in the first instance at general term.

To pass to our own country, Graham, in his book on Practice, at page 293, lays down the rule, that on a motion for a new trial on a case, the court will not take notice of an objection not raised at the trial. This rule does not depart from, but follows the English practice. Graham lays down the above mentioned case in 13 John. 495, as the authority for this proposition. At first blush it might appear that this case was not authority for the position, but on a close inspection it will be found that it is. It was held that by reason of 'the non-submission of a question to the jury, the court must presume it was abandoned at the trial. It is-evident that such presumption could only be deemed to have arisen, from the fact of no objection having been raised below to the non-submission of the question, and no request having been made for its submission. The non-objection, is the cause from which the court deduced the effect of a presumption of abandonment.

The same remarks will apply, and are to be understood as applying, without repetition, to other cases, where from the. same cause, the courts deduce the effect of an aequiesence in a ruling or decision, or in a certain disposition of a case, or of a presumption of an assumption by both parties at the trial, of the existence of a fact, or a presumption of a consent at the trial to substitute the judge for the juiy, in the determination of all, or some of the disputed questions involved. Thus, in Ford v. Monroe, (20 Wend. 210,) the defendant was not allowed to argue, as a cause for a new trial, that the proof was insufficient to establish that the servant was acting in the business of the master, because it was assumed at the trial that the proof was sufficient. So in Beekman v. Bond, (19 Wend. 444,) it was held that the point, that the value had not been paid for a boat, could not be urged, because on the trial it was assumed that it had been paid. Both these cases were motions for a new trial on a case, and in both the court refused to hear an objection that certain matters were not proved, on the ground that it was assumed at the trial that they were proved. But how did the court arrive at the conclusion that there was such assumption ? Only from the fact that on the trial attention was not drawn to such want of proof, by objection or otherwise. These cases, therefore, carry out the English practice before referred to, and our practice, as laid down in Graham and the case in 13 John. There are many other cases of the same character as those above cited from Wendell, but it is needless to refer to them. I have been unable to find a single- authority in this state antagonistic to the existence of the general rule thus laid down in the English practice, in the standard book on practic.e:of-¡this state, (Graham’s,) and the decisions above-referred to,

‘There are three cases which, on a cursory view, might appear to be antagonistic, but are not in fact. They are Archer v. Hubbell, (4 Wend. 514;) People v. Holmes, (5 id. 191 Scott v. Lilienthal, (9 Bosw. 224.) I will examine thein' in- inverse, order. In the case in 9 Bosworth, the learned judge who delivered the opinion of the court, after deciding that no exception had been taken sufficiently covering-the objection raised, so as to permit a new trial to be granted on a bill of exceptions, held that what transpired on'the trial amounted to taking such objection to the reception of , evidence, as would authorize the court to grant a new trial upon a case. This decision accordingly comes within the general rule, which does not require an exception for the purpose of founding a motion for a new -trial on a case, but simply that the point shall have been raised on the trial by objection or otherwise. In 5 Wendell, 191, the court held "that the point had been raised at the trial by objection to' the defense, and having once been raised, need not 'be- reiterated by an objection to the charge submitting such defense to the jury, and the court says: “If they had stood by in perfect silence, and heard the judge submit to the jury a matter of defense which was excluded by the pleadings, the court might not listen to them on a motion for a new trial for that cause.”

As the case was disposed of on the ground that a sufficient objection had been taken, it was unnecessary to decide what rule would have been applicable if no objection had been raised, and the court did not decide what rule would be applied, but intimated that in such case the objection would not be listened to. This case is then, to some extent, authority in favor of the general rule.

The case of Archer v. Hubbell, (4 Wend. 514,) does not seem to have been reported with a view to the point under discussion, as the only statement concerning it is contained in the reporter’s note as to what an oral decision on the argument was. It consequently does not appear whether any, and if any, what objections were raised at the trial. The point made was, that objections to the charge could not be raised, because the charge was not excepted to, and the court held that such rule only applied to bills of exceptions. This ruling is undoubtedly correct. The distinct point made was, that on a case a charge could not be reviewed unless there were exceptions. This point the court met, holding that the doctrine of exceptions was only applicable to bills of exceptions. To this extent, and to this extent only, is the case authority, and in this view of it is perfectly consistent with the general rule above laid down, relative to motions for new trials on a case. By that rule, it was never necessary that exceptions should be taken, but simply that the points relied on for a new trial, should have been raised at the trial by objection or otherwise. The point taken in 4 Wendell, was, not that the question had not been raised at the trial, but that no exception had been taken to its decision. Whatever misapprehension there may be as to the existence of a rule, that on motion for a new trial on a case, no objections can be heard unless raised at the trial, seems to me due to a hurried reading of the case in 4 Wendell, and a failure to recognize the broad distinction between exceptions and objections; a distinction not new, but well recognized by the English and our practice.

There is, however, an exception to the general rule, which is, that where there are objections, by reason whereof the party who has obtained a verdict can, in no possible event, and under no possible circumstances, be entitled to it, in that' action, a new trial will be granted, on the ground of such objections, although they were not taken at the trial. (Rich v. Penfield, 1 Wend. 380.) Here I will refer to a remark made by the court, in the above cited case of Beekman v. Bond, (19 Wend. 444,) viz: “The party cannot now make an objection, which, if taken at the proper time, might have been answered.” Language of the same import, is used in the above cited case of Ford v. Monroe, (20 Wend. 210,) and in numerous other kindred cases. It might be urged that by this language the courts meant to lay down, as a general rule, that on a motion for a new trial any objection may be urged, although not taken at the trial, and as the exception to the rule that such objection as might have-been obviated, could not be urged. I think the argument unfair and unsound; as the objections which can be obviated are immensely more numerous than those which cannot be, the argument would make the exceptions have a more extended application than the general rule. Again, as the general rule that all objections must be raised at the trial, was well settled in the English practice and our own, before the decisions in which the language under consideration is used, it cannot be overturned by inference drawn from mere peculiarity of phraseology. The fair and just interpretation of the language is, that it is simply designed to point out the exception; to decide that the case in hand does not fall within it, but that the general rule requiring all objections to be raised at the trial applies.

From this review, I am satisfied that upon authority, the decisions of Chief Justice Oakley, in the New York and Erie R. R. Co. v. Cook, (2 Sandf. 732,) that a party cannot z move for a new trial on a point not taken at the trial, if it be such as might have been obviated by proof, if it h'ad been raised; and the decisions of the same chief justice in Cook v. Hill, (3 Sandf. 341,) and of Judge Duer, in Stoddard V. Long Island R. R. Co., (5 Sandf. 180,) that objection to the charge cannot he taken for the first time on the motion for a new trial, are correct. I am aware that the court, in the last two cases, suggest that a different rule obtains in .the Supreme Court. I have not been referred to, and am unable to find any case, in that court establishing a different rule. It is true, that court has established the exception above referred to, but I do not understand this court to repudiate it.

There may possibly be another exception to the rule, (although I do not regard it as well settled,) which is, where the judge charges correctly, but the language used is such as tends to mislead, and has, in fact, misled the jury. This may be admitted as an exception, on the ground that it cannot be ascertained that the jury has been misled until after the rendition of the verdict, at which time an objection comes too late.

Thus, upon authority, the general rule is well settled, that on a motion for a new trial on a case, the court will entertain no objection not raised at the trial; and the exception to it, that they will entertain an objection, which, if taken, could not have been obviated; or, in other words, an objection by reason whereof the party obtaining the verdict can, in no possible event, and under no possible circumstances, be entitled to it in that action, is also well settled.

The rule, it appears to me, is based on sound principles. To allow a verdict to be set aside for errors in the admission or rejection of testimony, or in charging or not charging the jury, where such errors were in no manner pointed out, suggested or objected to on the trial, would not only be unfair to the judge who tried the cause, but would tend to lead some counsel to suffer error to be committed for the purpose'of setting aside a verdict, if it should happen to be unfavorable, and others to prepare themselves, negligently depending upon their general ability to put in, or offer to put 'in, such evidence as should, in any aspect of the case, be sufficient, and, if the verdict be against them, then employ other counsel to pick out flaws on which to obtain a reversal.

Although a party may have no right to urge an objection not taken at the trial, still the court may possibly, in a case . oí gross injustice, of its own motion, set aside a verdict, for objections not taken at the trial. Indeed, in one case, People v. Barnes, (12 Wend. 492,) the Supreme Court went further, and set aside a nonsuit, and ordered a new trial, although they held that the nonsuit was properly granted; and this was done for the reason, as stated in the opinion, that the plaintiffs had fallen into an error in their construction of the statute, and might have a good cause of action in point of fact. There is stated in the head note, but not in the opinion, the additional reason, that the court has reason to believe that without such relief the cause of action would be lost.

I do not propose to discuss the subject as to what power a court possesses in granting new trials, of their own motion ; whether it is a wholly unrestricted power, or whether there are any, and, if so, what restrictions. It is sufficient to say, that this case does not present such features as to call on the court to exercise, on its own motion, any prerogative it may have. The main issue in the case, viz. abandonment, was properly submitted to the jury, and I see no reason for disturbing their verdict on that issue. With reference to the issue of non-completion by the day, there was no proof of any damages arising therefrom, and, therefore, there was nothing to submit to the jury. On the issue as to unworkmanlike and unskillful performance, (on the decision of which issue, that of payment to the extent of the value of the work necessarily depends,) there was general evidence on the. part of the plaintiffs that the work was done in a workmanlike manner, and was better than ordinary work; while, on the part of the defendants, there was general evidence that the work was rough, and not workmanlike. The only matters particularized, however, were that, by the settling of one of the piers, a stone was broken, causing a damage, according to the defendants, of $30 or $40; according to the plaintiffs, about $5.50; and by reason of bad workmanship a chimney had to be taken down and rebuilt, at a cost of $15.

The plaintiffs admit the settling of pier, but say it was the fault of the ground, for which they are not accountable; and they deny that any of their work had to be taken down and rebuilt.

There is a conflict of testimony; the plaintiffs are just as likely to be correct as the defendants. Indeed, the jury having, on another issue, the conflicting testimony on which was left to them, found for the plaintiffs, it is but fair to assume, in considering whether the court should, of its own motion, take action, that the plaintiffs are more likely to be correct on this issue than the defendants, and that the jury, if it had have been left to them, would have so found. Conceding that the court can, of its own motion, interpose and grant a new trial for objections not taken at the trial, the circumstances of this case do not call for the exercise of such power; if they do, there is no case in which the court might not be called on to exercise such power, for a weaker case than this can scarcely be imagined.-

I am of opinion, for the reasons assigned, that the judgment should be affirmed, with costs.


source: Caselaw Access Project

author:
By the Court, Monell, J.
      Robertson, Ch. J.

license: Public Domain

text:
    Frederick A. Wheeler, plaintiff and respondent, vs. Edwin C. B. Garsia, defendant and appellant.
    1. Where, by the terms of a contract for the sale of stock, the seller has a specific time in which to make or tender a delivery, there can be no breach of the contract until that period has expired. Hence a demand before the expiration of such period is not only unnecessary, but would be unavailing.
    2. Where, in such a contract, the seller, on demand being made of the stock, after the same was due, declared his inability to deliver it, this was equivalent to a waiver of an offer to perform by the purchaser.
    3. But where the delivery and payment are concurrent acts, no prior offer to pay, by the purchaser, is requisite to render the neglect of the seller to deliver the stock, a sufficient breach of the contract Whereon to sustain an action. The seller is neither bound to deliver without payment, nor the purchaser to pay without delivery.
    4. Where the period for the delivery of stock is fixed by the contract of sale, the seller is entitled to the whole of it wherein to deliver. He may do so on the first, last, or any intermediate day of such period, but is bound to deliver at some time within its limits.
    5. Immediately on the expiration of the limited period, the vendor, in case of non-delivery, is in default, and a right of action arises for the breach. Under such a contract, no demand is necessary.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard November 7, 1867;
    decided January 6, 1868.
    This action was to recover damages for the non-delivery of 2000 shares of the Downieville Gold Mining Company, contracted to be sold and delivered by the defendant to the plaintiff’s assignor. • The contracts were as follows:
    “ 1000 shares S. 60, C. 41 e. Eew York, 24 May, 1866.
    I have sold to G. P. Hart, one thousand shares of the capital stock of the Downieville Gold Company, at forty one cents per share (41 c.) payable and deliverable, seller’s option, sixty days (60 days) with interest at the rate of six per cent per annum. A deposit of two hundred and five dollars ($205) to he made in U. S. Trust.Company during the pendency of this contract as per agreement.
    Edw. C. B. Garsia.”

      “ 1000 shares S. 60. New York, 12th June, 1866.
    I have sold to George-P. Hart & Co. one thousand shares of the capital stock of the Downieville Gold Mining Company at fifty cents per share, payable and deliverable seller’s option, sixty days (60 days) with interest at the rate of six per cent per annum, either party having the right to call for a deposit of twenty per cent during the pendency of this contract, according to the rules of the P. & M. S. B.
    Edwin C. B. Gabsia.”
    The contracts were duly assigned to the plaintiff.
    The complaint alleged readiness to perform on the part of the plaintiff and neglect and refusal on the part of the defendant. The answer set up a defense of fraud on the part of Hart and the plaintiff, and denied performance or ' offer to perform by the plaintiff, and alleged performance and readiness to perform on the part of the defendant.
    The action was tried before Justice Babb our and a jury. No evidence was given to sustain the allegation • of fraud, but the whole case turned upon the sufficiency of the demand and the proof «of it.
    The plaintiff and Hart both testified that when the contracts became due a demand for the stock was made. Hart testified that when he made the demand, the defendant said he could not deliver it. The defendant denied under oath that any demand was made by either Hart or the plaintiff. It was undisputed, that no money was offered in- payment for the. stock, when the demand, if any, was made. Although some evidence ténding or designed to show a settlement (between Hart and the defendant) of the first contract and a full performance of it was given, no exception was taken upon which any question of law could arise, and the settlement was substantially denied by both the plaintiff and Hart.
    The defendant noved to dismiss the complaint, on the ground that no offer or tender of money was made with the demand. The motion was denied, and the defendant' excepted. The justice left the question of demand and settlement to the jury, who found a verdict for the plaintiff.
    A motion for a new trial, made at special term, was denied, and judgment entered on the verdict.
    The defendant appealed from the judgment and order.

      Henry Whittaker, for the appellant.

      8. P. Bussell, for the respondent.
   By the Court, Monell, J.

The evidence of a demand and of a settlement was contradictory. These were the only questions for the jury, and they having been found against the defendant, the verdict cannot be disturbed. The sufficiency of the demand, unaccompanied by any offer to pay, is a question of law properly raised by the motion to dismiss the complaint.

By ' the terms of the contracts the defendant had the whole of the sixty days to. make or tender delivery, and there could have been no breach of the contracts, until the last of the sixty days had expired. (Dustan v. McAndrew, 10 Bosw. 136.) Hence a demand before the expiration of the sixty days was not only unnecessary but would have been unavailing. •

The verdict establishes that the demand was made after the stock was due. That question was distinctly submitted to the jury. The demand, therefore, was sufficient in point of time; and if the verdict can be made to cover the evidence (of the witness Hart, that when he made the demand the defendant “ did not say he would not deliver the stock, but that he could not; he was not able,” it would remove all difficulty, if otherwise there was any, as to the sufficiency of the demand in point of law.

The evidence of Hart alluded to, was left to the jury under the instruction of the justice, that if they believed it, the plaintiff would he entitled to recover. As the verdict was general, we must intend, that the jury found as a matter of fact, that the defendant was unable to and could not deliver the stock. That was a waiver of any further offer to perform by the plaintiff. (Story on Sales, § 453 a. Clark v. Crandall, 3 Barb. 612.)

But I do not think an offer to pay was requisite to render the breach sufficient to sustain the action. The delivery and payment were concurrent" acts. The seller was not bound to deliver without payment, nor the purchaser to pay without delivery. Ability to pay, coupled with a willingness to perform, is all that is required of a vendee, (Bronson v. Wiman, 8 N. Y. Rep. 182,) and Hart testified to his readiness to pay for the stock, if it had been delivered.

Not only was a tender of payment unnecessary, but I think a demand of any kind was not required to put the defendant in default. The time for the delivery was fixed by the contract. The vendor had the whole of the sixty days. He could deliver on the first, the last or any intermediate day. He was bound to deliver within the prescribed period. Immediately on the expiration of the limited time the defendant was in default, and the right of action arose for the breach in not delivering. Under such a contract a demand was not necessary. (Story on Sales, § 453, and cases there cited.)

None of the objections to the rejection of evidence were well taken. Such evidence, as is now claimed by the appellant, might have had possibly some remote bearing in support of the allegations of fraud set up in the answer. But proof that the stock was controlled by “ a pool; ” or, that Hart had entered into a combination with others to control all the shares of the mining company, would not establish any of the allegations of fraud or misrepresentation set up in the answer. The evidence was, I think, properly excluded.

I think the judgment and order should be affirmed, with costs.

Robertson, Ch. J.

Ño demand by or on behalf of the plaintiff, during the running of the contracts in suit, would have been of any avail, and to have made one eo instanti at the moment of their maturity, being at the last hour of the sixty days, would have been impracticable, if not impossible. A demand at any time afterwards, seems by the authorities to be unnecessary; (Story on Sales, § 453, and eases cited;) but they fail to dispose of the question, whether if such demand be not made, it is not necessary to establish the readiness and ability of the vendee during the whole period fixed by the contract, to perform it on his part, so that if the vendor should tender performance at any time on his part, the former could forthwith have fulfilled his obligation. That seems to be the rule when a contract is to be performed on a specified day, (Lester v. Jewett, 1 Kern. 453; Stevenson v. Maxwell, 2 Comst. 408; Coonley v. Anderson, 1 Hill, 519; Bronson v. Wiman, 8 N. Y. Rep. 182;) or when each party has the right to determine within a fixed period the time for performance, (Dunham v. Mann, 8 N. Y. Rep. 512, 513,) and might by parity of reason be extended .to contracts similar to those in controversy.

But if a demand supplying the place of readiness on the part of the plaintiff to perform at all times during the running of the contract was necessary to sustain this action, it clearly need not have been made at the instant the defendant made default. A demand within a reasonable time after the contracts matured, should be all that was necessary. On that point the evidence was clear. • The broker who made the contracts (Hart) testified that he demanded their performance- about the time the second contract became due, which was after the 23d of July, (when the first contract fell due,) the second maturing about the 11th of August. Twenty days would clearly not have been an unreasonable time, within which to make a demand, or even the week of two afterwards which elapsed before the plaintiff made a second demand. Hart further testified that he was ready to pay for the stocks when he demanded them, and that on such demand the defendant declared his inability to deliver them, which of itself was a waiver of any offer on the part, of Hart to perform, (Story on Sales, § 453, a ; Clark v. Crandall, 3 Barb. 612,) if that were necessary.

The evidence as to any settlement of the first contract was conflicting, and submitted to the jury. None of the exceptions to the admission or rejection of evidence were well taken. I concur in the opinion that the judgment should be affirmed, with costs.