
    THOMAS A. HARTON, Plaintiff and Respondent, v. NATHANIEL BLOOM, Defendant and Appellant.
    I. Verdict, when not set aside and New Trial not granted for considerations arising out of the amount of the verdict solely, a. A verdict for a plaintiff will not be set aside on the defendant’s application, on the ground that the evidence bearing on the cause of action shows that the plaintiff, if entitled to recover at all, was entitled to recover more than the amount of the verdict, when a recoupment, counter-claim or set-off is pleaded, and evidence is given tending to support the plea, and the judge charges the jury (although erroneously), that there is sufficient evidence to support a verdict in favor of such plea, if rendered, and that if they found in favor of defendant on such plea, they should deduct the amount they should fine! defendant entitled to in respect thereof from the amount which the plaintiff would otherwise be entitled to.
    1. Semble. If, however, the amount of the verdict shows that the jury, in determining the case, either wholly disregarded the evidence, or misapprehended its effect, or overlooked some important fact, or must have necessarily found some fact which is wholly inconsistent with a verdict for any amount in favor of the plaintiff, the verdict will, for such cause, be set aside.
    Per Jones, J.
    Before Monell, Jones and Spencer, JJ.
    
      Decided February 4, 1871.
    The plaintiff entered into a contract with the defendant, whereby he agreed to serve the defendant as salesman for a period of time extending from January 1, 1868, to December 31, 1868, for the sum of two thous- and four hundred dollars per annum.
    The present action grew ont of this contract.
    Tne plaintiff in his complaint alleges that he performed his duties as salesman under the said contract, until about November 27, 1868, when the defendant discharged him. That he has been ready and willing to perform his duties as salesman for the balance of the term of employment. That he has received on account of his services, twelve hundred and eighty dollars, leaving due, on November 1,1868, a balance of seven hundred and twenty dollars. To recover this balance and compensation for the months of November and December, 1868, this action is brought.
    The defense interposed by the answer is, that the plaintiff, about November 3, 1868, voluntarily left the service of defendant without just cause, and ceased to perform his duties as salesman, and wholly neglected to perform the same; that by means of said neglect, the defendant suffered heavy losses. That plaintiff, when he left defendant’s service, kept the trunk of samples belonging to defendants, and failed to deliver the same until about November 28, 1868. That defendant’s damages, by reason of plaintiff’s said breach of contract and said retention of samples, amounted to two thousand five hundred dollars, which sum defendant demanded to counter-claim.
    The issues were tried before the court and a jury.
    On the trial the agreement between the parties was admitted to be as above stated. There was enough testimony to justify the jury in finding that plaintiff was taken sick on November 10; that by reason of such sickness he was incapacitated from performing his duties as a salesman ; that said incapacity, arising from this cause, continued for about two weeks; that on his recovery, he returned to New York and offered to work out his contract, but defendant refused to allow him.
    There was also evidence bearing on the question of damages sustained by the defendant in consequence of the cessation of work by the plaintiff. _
    The judge charged the jury, that unless the plaintiff had good cause for abandoning defendant’s service on November 10, arising out of sickness, then, that he could not recover, and they should render a general verdict for defendants ; but that, if on November 10, 1868, the plaintiff became unable, by reason of sickness, to perform his part of the contract,. and said inability continued during the time he kept himself absent from defendant’s service, he was entitled to recover the sum of seven hundred and eighty-six dollars and sixty-seven cents, with interest from November 10, 1868, subject, however, to a reduction by the amount of such damages sustained by the defendant in consequence of said inability, as were the direct result of plaintiff’s failure to perform, and as were sustained between November 10 and the day on which he refused to take the plaintiff; and if such damages exceeded the amount of plaintiff’s claim, a verdict for the excess should be rendered for defendant.
    To this charge no exception was taken. The jury rendered a verdict for plaintiff for five hundred and seventy-four dollars and twenty-three cents.
    Defendant moved for a new trial on the minutes, which motion was denied. '
    Thereafter judgment was entered in conformity with the verdict.
    Defendant now appeals from the order denying the motion for a new trial and from the judgment.
    
      Max Goepp, for defendant, appellant.
    I. The contract between plaintiff and defendant was for a certain time, and if the plaintiff left without cause before the expiration of the time, he cannot recover the services he rendered up to the time of his leaving (2 Pars, on Contracts, 36; and see the numerous cases cited in note g ; Cunningham v. Jones, 20 N. Y. 486 ; approving McMillan v. Vanderlip, 12 Johns. 165, &c. ; Wolf v. Howes, 20 N. Y. 197; Jennings v. Camp, 13 Johns. 94 ; Monell v. Burns, 4 Pen. 121).
    II. If the plaintiff was prevented by sickness from continuing to render service under the contract, after November 10, he was entitled to recover for his services, at the contract rate, up to that date (2 Pars. on Contracts, 38 ; Fahy v. Forth, 19 Barb. 341 ; Wolfe v. Howe, 20 N. Y. 197 ; Jones v. Judd, 4 Comst. 411 ; Hall v. Wright, E. B. & E. 749 [E. C. L. R. 96] ; Cackson v. Stone, 1 E. & E. 257 [E. C. L. R. 102] ; Brown’s Legal Maxims, p. 234 ; Astor v. Haven, 2 Esp. 530 ; Clarke v. Gilbert, 26 N. Y. 279). In this last case, Balcom, J. intimates that the employer should be allowed to deduct from the contract rate the damages sustained by him by reason of the servant’s involuntary failure to complete the contract ; but the majority of the court dissented from this view.
    If the jury found that the plaintiff was disabled by sickness from rendering services after November 10, 1868, it was their duty to give him the full amount of his salary up to that date, and nothing less. The law does not warrant their deducting any damages sustained by the defendant in consequence of plaintiff’s desertion, if such desertion was caused by sickness. Sickness is the act of God; and “actus Dei nemini facit injuriam.” It is clear that the defendant, Bloom, could not have maintained an action for - damages against the plaintiff, Hartón, for a breach of contract caused by sickness, or any other act of God. If Bloom could not have maintained an action, as plaintiff, he cannot as defendant counter-claim his damages against Hartón’s salary—always assuming Barton’s desertion to have been necessitated by sickness. The jury ought to have passed upon the question, whether Horton’s admitted non-fulfillment of his contract was excused by sickness, or was not; in other words, whether he was in fault or whether he was not in fault. If he was in fault he was entitled to receive nothing, and the verdict should have been for the defendant. If he was not in fault he was entitled to his salary up to November 10, 1868, without any deductions, and the verdict should have been for plaintiff— eight, hundred and fifty-three dollars and nineteen cents. The verdict rendered, five hundred and seventy-four dollars and twenty-three cents, shows that the jury did consider the plaintiff to have been in default, but, nevertheless, thought proper to allow him something. This they had no right to do, and the verdict is a verdict against evidence, and a motion for a new trial is defendant’s only remedy.
    III. The verdict rendered, being inconsistent with any correct disposition of the issues presented, is a verdict against evidence, and should be set aside. Adsit v. Wilson, 7 How. Pr. 64 ; Marx v. Wood, 19 Id. 405 ; Macy v. Wheeler, 30 N. Y. 231 ; Alger v. Duncan, 39 Id. 313. A motion for a new trial on the judge’s minutes is the proper remedy. See cases supra. The defendant is entitled to a decision by a jury whether the plaintiff was or was not in fault; and, if the jury find the plaintiff to have been in fault, the defendant is entitled to a verdict in his favor. Under the evidence, the plaintiff was entitled to his whole salary up to November 10, or to nothing. The jury have found that the plaintiff was to blame, to the amount of two hundred and fifty dollars, or thereabouts. This being so, their verdict should have been for defendant. The only way to remedy the error is to grant a new trial. It must be evident to the court that, upon the whole facts of the case, justice has not been done. To sustain this verdict is to render the law uncertain and to leave parties without a distinct knowledge of their rights and obligations under contracts such as this.
    IV. The circumstance that no exception was taken to that part of the charge which seems to hold that plaintiff might be liable to a recoupment for damages, even if not in default, is not an objection to granting a new trial. An objection to a recovery may. be a sufficient ground for granting a new trial, although not taken at the trial below, if the point is good in law and could not have been obviated by proof. Kowing v. Manly, 2 Abb. Pr. N. S. 377 ; People v. Holmes, 5 Wend. 193 ; Archer v. Hubbell, 4 Id. 514 ; Crow v. Recker, 33 How. Pr. 208. There was no express exception taken on the trial. The defendant, however, asked and obtained an instruction that the contract was . entire and that the plaintiff, if in default at all, could recover nothing. It was not incumbent on the defendant to except to that part of the charge which seems to indicate that plaintiff, if not in default, might nevertheless be liable to a deduction from his wages for damages sustained by defendant. That part of the charge can scarcely be said to have been unfavorable to the defendant. The motion for a new trial is not based on misdirection of the court, but on the ground that the verdict is utterly inconsistaht and incompatible with any conceivable logical and legal deductions and inferences from the testimony. It must be apparent to the court, on the whole facts, that Hartón was to blame, and that the whole jury meant so to find. His leaving the samples at Utica without sending them to defendant or notifying them where they could be found; his omission to send any word to the defendant from Utica, although he was well enough to travel to Toronto ; his-telegraphing to Gunn in December, without sending any message to the defendant; his total silence for three or four weeks, when it is not pretended that he was suddenly prostrated by disease, so "as to be unable to communicate with defendant; his admissions of delinquency to Gunn, and through him to defendant— all these circumstances clearly show that Hartón’s desertion and abandonment of his duties were not wholly involuntary and enforced upon him by “act of God,” but that he was guilty of a voluntary and negligent violation of his contract. The jury must have so found, but they hesitated to adopt the logical and legal consequence of such finding, and undertook to “split the difference ” by finding for plaintiff about two-thirds of that to which he would have been entitled if not in default. Such a verdict is'unjust to the defendant and prejudicial to the interests of the business community.
    
      QTiarles 8. Spencer, for plaintiff and respondent.— The services of plaintiff ceased, according to the proof, by the act of God. He was incapacitated by illness, and he reported as soon as he could. The plaintiff alone has cause to find fault with the charge and verdict. by which two hundred and fifty dollars was deducted from his actual past earnings.
   By the Court.—Jones, J.

In support of his claim for a reversal of the judgment, the appellant’s counsel lays down two propositions :

1. That if the plaintiff’s non-performance was excused by sickness, he was entitled to recover the full amount of seven hundred and eighty-six dollars and sixty-seven cents, without any reduction.

2. That if said non-performance was not so excused, then'he was not entitled to recover anything.

And as a result from these propositions, he claims that the verdict being for five hundred and seventy-four dollars and twenty-three cents only, is, in any aspect of the case, erroneous, and should not be permitted to stand.

Conceding, for the purposes of the argument, that the first proposition is correct, still the defendant cannot complain because the plaintiff did not recover against him as large a verdict as he was entitled to, unless the amount of the verdict shows that the jury, in determining the case, either wholly disregarded the evidence or misapprehended its effect, or overlooked some important fact, or must have necessarily found some fact in favor of defendant which is wholly inconsistent with a verdict for any amount in favor of plaintiff.

Appellant’s counsel claims, that the amount of the verdict in question shows that the jury found that the plaintiff was, in some degree, in fault, either in ceasing to render service or in delaying to return to it, and for that reason refused to return a verdict for the full amount; and on this, claims that such finding is inconsistent with a verdict for plaintiff.

Were it not for the judge’s charge, there might be some force in the agreement; but it is not necessary to stop to consider what force it might then have had, since the charge refutes the argument.

The judge charged the jury, that if the plaintiff became unable, by reason of his sickness, to perform his part of the contract, and such inability continued during the time he kept himself absent from defendant’s service, then he was entitled to compensation for the time during which he did serve, pro rata, according to the rate provided for by the contract; but he also charged that if, as a direct result of plaintiff’s failure to perform, defendant sustained damages, then the defendant was entitled to counter-claim those damages against the sum to which plaintiff was entitled as compensation for the services by him actually rendered; and this, although said failure to perform was the result of inability caused by sickness.

The defendant had given evidence tending to show that he had sustained damage by plaintiff’s failure to perform, and by his answer he had claimed to counterclaim those damages.

Under the charge, then, the jury, if they found that defendant had sustained said damages, were bound to deduct the amount thereof from the compensation which would be due the plaintiff in case they found that his failure to perform was caused by sickness ; and the charge clearly intimated to the jury that there was sufficient evidence upon which they might find that defendant had suffered damages which were deductable from plaintiff’s compensation.

The deduction made by the jury may well have been made, in conformity with a part of the charge, for damages sustained by the defendant, by reason of plaintiff’s failure to perform, which failure was the result of his sickness.

As the reduction may thus be ascribed, the court is not at liberty to say that it was on a ground which, according to other parts of the charge, would call for a verdict for defendant.

It is said, that so much of the charge as instructed the jury that, even if they found that the failure to perform was caused by sickness, yet that they should deduct from the compensation for services actually rendered, such damages, sustained by the defendant, as were the direct result of the failure to perform, was erroneous ; and as I understand it is claimed from this, that the deduction cannot be ascribed to action by the jury, under such erroneous direction.

Conceding-it to be error, still the result claimed does • not follow. The jury were bound to receive it as a correct exposition of the law, and were entitled, in their deliberations and verdict, to act upon it as such. We cannot say they did hot.

The error of law, if it be one, has in nowise prejudiced the defendant; he cannot, therefore, complain of it.

Defendant makes no claim that the jury did not allow all that he was justly entitled to for damages, and plaintiff does not complain that they allowed too much. The questions whether the charge that an allowance could be made, was correct, and if correct, whether the jury properly adjusted the amount of damages according to the evidence and charge, are not presented.

There appears to be no error in the verdict and judgment which has prejudiced the defendant. The judgment, therefore, should be affirmed, with costs.  