
    U. S. CIRCUIT COURT.
    Alvah W. Burlingame agt. Central Railroad Company of Minnesota.
    
      Practice — Jwry — Interest — Power of court to ca/use erroneous verdict to be amended after its entry—Affidavit of jurors competent evidence to prove mistake—When interest should be allowed.
    
    Where the foreman of a jury announces a verdict different from that agreed to by the jury, and the erroneous statement is taken and recorded and the jury allowed to separate, the court, upon application made at the same circuit and upon the following day, has power to call the jury together and interrogate them as to the verdict they agreed upon, and to correct the record so as to make the verdict conform to the actual finding.
    Affidavits of the jurors showing the mistake, may be received upon such application.
    
      Where the services for which the suit was brought were rendered on special request of defendant’s, and were to be paid for, the pay is due when such services were performed, and after such time interest should be allowed.
    
      Eastern District of New York,
    
    
      January, 1885.
    This was an action on contract for services performed as secretary and treasurer by the plaintiff, for defendants, in his official capacity as such secretary and treasurer, and for extra services in superintending work in Minnesota, purchasing materials at points at and between New York and Minnesota, paying laborers at points in Minnesota, making arguments, before local bodies, for town bonds, etc., and obtaining' the voting of them and for other services.
    It appeared that plaintiff was a director and the regularly elected secretary and treasurer of defendants, and the judge presiding at the United States circuit court at which the cause was tried, charged the jury that they should not allow plaintiff for any services performed by him as director or secretary and treasurer, but that they should allow him for any authorized extra services, if they found any such to have been performed by him, and that if they found for plaintiff any verdict upon such grounds, that he would be entitled to interest on the amount found from the date of the last service so performed. The jury retired late in the afternoon and came in subsequently, the foreman announcing a verdict for plaintiff for $3,500. The next morning the jary having separated, but the term not having ended, plaintiff’s attorney applied to the court to have the statement of the verdict corrected, presenting written memorandum of the jurors afterwards sworn to, in open court, by all the jurors, that the verdict, as intended, was for $3,500 principal and interest, making in all $5,538.20. The remaining facts appear sufficiently in the opinion of Hon. Hoyt H. Wheeler, judge sitting at the United States circuit court, eastern district of New York, before whom and a jury the cause was tried, and who, on the application for judgment, rendered the following opinion.
    
      P. W. Ostrander, for plaintiff, cited Sargeant agt.-
    (5 Cow., 106); Ex parte Cuykendall (6 Cow., 53); Jack son agt. Dickenson (15 J. R., 309); Roberts agt. Hughes (7 M. & W., 399); Prussel agt. Knowles (4 How. [Miss.], 90); Durnford agt. East (27 T. R., 281); Smith agt. Cheatham (3 Caines’ Cases, 57); Dalrymple agt. Williams (63 N. Y., 361); Cogan agt. Elden (1 Burr, 383).
    
      R. W. De Forest, for defendant.
   Wheeleb, J.

— This is an action to recover for personal services rendered while the plaintiff was a director and treasurer of the defendant. The jury were directed to return a verdict for the plaintiff for such services as he rendered, if any, outside the scope of his duties as director and treasurer at the special request of the president and the rest of the board of directors, and that if they found for the plaintiff they might allow interest from the time when the services were completed. Late in the day they returned a verdict for the plaintiff for $3,500, and the court was immediately adjourned to the next day. During the next day a statement was made to the court that the jury intended to give a verdict for $3,500 with interest. On the morning of the next day after that, and on notice to defendant’s counsel to be present, and while the counsel for both parties were present, the court directed the jury to be recalled to their places, and that the verdict as recorded be read to them, and that they be asked if that was their verdict. This was done and the foreman answered that it was not, that their verdict was for $3,500 with interest. They were directed to compute the interest and agree upon the amount, which they did, and answered that it was $2,038.20, making $5,538,20, and that their verdict was for the plaintiff for that amount, which was ordered to be recorded, and the jury being interrogated separately all said that that was their verdict. At the same time an affidavit of all the jurors was presented and filed staring that the verdict agreed upon was for the plaintiff for $3,500 with interest. The plaintiff now moves for judgment on the verdict for the full amount. The defendant objects to judgment on the verdict for any more than $3,500, on the ground that interest was not recoverable, and because it was not within the power' of the court to allow the verdict to be varied after it had been received and recorded. As the services were rendered on special request and to be paid for, the pay was due when they were performed and after that time was detained by the defendant against the right of the plaintiff to have it. Under these circumstances it ought to bear interest (People agt. Gasherie, 9 Johns., 71; Wood agt. Robbins, 11 Mass., 504; Burdett agt. Estey, 19 Blatch., 1). The power of the court to cause the verdict to be corrected would seem to be ample according to the law of the state of New York and the practice of its courts as settled by its highest court. In Dalrymple agt. Williams (63 N. Y., 361) the jury returned a verdict against two, when the verdict agreed upon was against one and in favor of the other, and the verdict was recorded and the jury separated. Afterwards on the same day, on the affidavit of all the jurors, the verdict was corrected and the judgment entered upon it. This course was approved. In Cogan agt. Elden (1 Burr., 383), where the issue- was as to two rights of way under which the defendant justified, the jury found for the defendant as to one, and for the plaintiff as to the other, but returned a verdict for the defendant as to both and separated. This verdict was corrected on the affidavit of the jurors. In this case there is no suspicion of any unfair conduct on the part of the jurors or any one. It was an honest mistake which, if not corrected, would prevent the finding of the jury as it actually was from being carried out. The correction is not an impeachment of the verdict by the jurors in any sense. It upholds the real verdict and prevents miscarriage in its delivery into court. The verdict as first recorded was not the real verdict of the jury. If it could not be corrected it should be set aside. Heither party has moved for that.

Judgment on verdict for full amount.  