
    ALBERT ZIMMERMAN, et al. Plaintiff and Respondent, v. THE NATIONAL STEAMSHIP COMPANY, Defendant and Appellant.
    I. Witness.
    1. IMPOSSIBILITY OF FACTS SWORN TO, DISCREDITING BY.
    (<t) Impossibility in part only, not.
    
    Where the evidence shows that the fact sworn to is in part true and in part erroneous, arising from mistake or miscalculation or excusable exaggeration, the witnesses, as to the fact, are not wholly discredited.
    H. Reversal op judgment.—What not cause eor.
    1. Verdict for less, than plaintifi is indisputably entitled to, is not cause for reversal on appeal by defendant, if that be the only error.
    Before Sedgwick and Speir, JJ.
    
      Decided May 8, 1877.
    
      Appeal from a judgment entered on a verdict in favor of plaintiff, for $482.
    The action was to recover the value of certain china, glassware, and a few other articles, shipped by plaintiff on one of defendant’s vessels, for carriage to New York, which defendant failed to deliver.
    The plaintiff’s witnesses testified that the china, glassware, and other articles in question were of the value of $650, and had been packed in what they called a barrel. A portion of the china was referred to as being “ one fine English china dinner - set, complete, painted blue and gilt with flowers, value $150.”
    The glassware was referred to as “ one full set of cut glass- decanters and glasses, one dozen sherry glasses, one dozen champagne glasses, one dozen liquor glasses, two decanters, value $75.”
    There was testimony on the part of the defendant, that this glassware alone would fill a barrel; also that a complete dinner set consisted of 150 pieces, and that it would fill a cask of 20 cubic feet. There was evidence on the part of the plaintiff showing that china was usually packed in casks, and tending to show that the largest sized casks would contain all the articles, even taking the dinner set at 150 pieces ; that a complete dinner set might consist of 100 pieces or less, and that that which plaintiff’s witnesses called a barrel, was a large sized cask. One of the witnesses testified that he had seen casks in china manufactories, and always imagined a cask to be a very large barrel, and would speak of it as a barrel of china ; and the rare of freight paid tended to show that that which was shipped, by whatever name it might be called, contained 20 cubic feet. There was no evidence as to the value of the articles, except that given by the plaintiff’s witnesses.
    There was also a question as to whether a special agreement had been entered into, limiting defendant’s liability to $5.
    The defendant’s counsel requested the court to charge “that if the jury believed the testimony as to the utter incapacity of the package to contain the sworn contents, it will discredit all the testimony of the plaintiff, and authorize a verdict for nominal damages.”
    The court refused so to charge, and defendant’s counsel excepted.
    The court, in one part of the charge, instructed the jury, that if the special agreement were not made, the defendant “was liable for the amount of the goods shipped.” And in another part, “for the actual value of these goods.”
    The jury rendered a verdict for plaintiff for $482.
    
      B. C. Chetwood, attorney, and of counsel for appellant, urged:
    I. The verdict is clearly not only against the evidence, but also in the teeth of the judge’s charge. 1. By the evidence uncontradicted the plaintiffs should have recovered $741, or thereabouts. 2. If they failed to recover that amount, the only other sum mentioned was, “ five pounds sterling.” 3. If the jury believed the testimony of defendants, they could find only nominal damages.
    
    II. The judge charged them in terms to find, if they found at all for plaintiffs, either, 1. Amount claimed in complaint with interest; or, 2. The equivalent of five pounds sterling, in United States currency. The jury set at naught the evidence, and turned a deaf ear to the instructions of the court, and found an utterly unsupported verdict for $482.16. ‘ ‘ Where the amount of a verdict is determined by mere conjecture, and is not based upon any calculation warranted by the testimony, it will be set aside as unsupported by sufficient evidence” (Bauder v. Lasher, 5 Lans. 335). “To justify a verdict, the law requires such proof as will leave no reasonable doubt of the existence of the fact upon which it must rest ” (Sheldon v. Hudson River R. R. Co., 29 Barb. 226; see also Lough v. Romaine, 4 J. & S. 332 ; McDonald v. Walter, 40 N. Y. 551).
    III. Apart from all mistake on the jury’s part, we conceive the appellants have a good exception to the judge’s refusal to charge as requested. It is entirely within the principle of the charge, and undoubtedly defendants were entitled to have it charged, as requested. If explicit instructions are refused when asked to be given * * * * it is a cause for a new trial (Green v. Hudson River R. R. Co., 33 Barb. 25).
    
      John M. Bowers, attorney, and of counsel for respondent, urged:
    I. As to the claim that the defendants over valued their goods, and that such articles could not have been contained in the lost cask. The plaintiffs were Germans, and innocently speak of the package lost as a “barrel;” and the defendants seek to prove that the plaintiff Albert Zimmerman spoke of it to the witness Losee as an “ ordinary flour barrel,” seven cubic feet in size, and then called several witnesses, Bogers, Noonan and Alcock, to prove that such a barrel could not have contained all the articles testified by the plaintiffs to have been in the package lost. Bach of these witnesses, however, states that casks are very much larger than barrels, and one of them, Noonan, says that a cask would have contained all the articles named. Bach of them also states that if they had seen the package lost, they could have at once said whether it was a barrel or a cask. There can be no question but that it was a cask. It was so spoken of by Boumphrey, one of defendant’s witnesses, who says it was a cask ; and by Titherington, another of defendhnt’s witnesses, who says it was a cask. Both these witnesses resided at Liverpool, and both saw the lost package. The cargo book of the defendant also speaks of it as a cask ; and in the parcel receipt counterpart it is also spoken of as a cask. Both these exhibits were written by parties who saw the parcel. No other person who ever saw the cask gave testimony at the trial. The whole matter was properly submitted to the jury as a question of fact, and this court will not interfere with their verdict.
    II. The verdict could not, in any event, be set aside as against the weight of evidence, as the defendants made no motion for judgment (Peake v. Bell, 14 N. Y. S. C. R. [7 Hun] 454, and cases cited).
   By the Court.—Sedgwick, J.

The request to charge implied that in the case specified, the jury would have no right to say that there was any credible testimony as to what the package contained. This- is not a necessary result, for the jury had the right to perceive that the plaintiffs’ testimony was in part true, and the defendant’s testimony did not go the length of showing that the package could not have contained china of some value, to more than a nominal amount.

The judge instructed the jury (after leaving the question of liability of only £5, to them properly) that if that special agreement were not made, the defendants “ were liable for the amount of the goods shipped,” and in another place “the actual value of these goods.” The learned counsel for appellant supposes that this charge strictly held the jury to find a verdict in the amount sworn to by the plaintiffs’ witnesses, which was materially greater than the verdict. If it be the case, that the only error is that the jury did not find an amount as great as the evidence indisputably shows, then the verdict might be increased to the proper amount. The finding of the jury jvas not hurtful to the appellant, and cannot be complained of by it. The fact that the jury did not find the larger amount, shows that in their discrimination, they believed that the quantity was less than the witnesses testified to, from a mistake, a miscalculation of the fullness of the sets of china, or from excusable exaggeration, but not necessarily from intentional falsehood.

I am of opinion the judgment should be affirmed with costs.

Speir, J., concurred.  