
    John Martin Layman, Appellant, v. John Anderson & Co., Respondent.
    
      Jwry trial—a mere preference of Me cowrt foi' a different verdict does not justify it in setting a verdict aside.
    
    Parties who have a right to a, trial by jury cannot be deprived of it because the verdict may not be such a one as the court would have preferred.
    It is only where the evidence is uncontradicted or is so preponderating, in one direction that a verdict to the contrary indicates that the jury was actuated by favor, prejudice or passion, that the court is justified in taking the case - from the jury and determining the facts itself.
    When there is a fair conflict in the evidence, and where there are witnesses on either side whose credibility is to- be determined, especially where the witnesses are parties to, or are interested- in the action; and where there are documents and papers and circumstances sworn to by witnesses, the effect of which is to be determined and from which inferences are to be drawn, the questions of fact must be determined by the jury and not by the court.
    Appeal by the plaintiff, John Martin Layman, from an order of the Supreme Court, made at the New York Circuit and entered in the office of the clerk of the county of New York on the 28th day of October, 1895, setting aside the verdict of' the jury and granting a new trial. The jury rendered a verdict in favor of the plaintiff for $15,000.
    The action was brought upon a contract made February 8, 1890, by and between the plaintiff and defendant herein and one John C. Anderson, wherein it was agreed, so far as it is material here to refer to it, that the plaintiff, in consideration of $35,000 to be paid him in the capital stock of the defendant at par, and mutual agreements therein expressed, sold and transferred to the defendant the business, good will, trade marks, rights and privileges conveyed to -plaintiff by Anderson by indentures of April 15, 1882 (the business being the manufacture of chewing and other tobacco, which was carried on prior to April 15, 1882, by Anderson, and subsequent thereto by plaintiff), and all the- stock, materials and supplies on hand, and the defendant agreed to pay plaintiff therefor, $35,000 in capital stock at par, and Anderson, in consideration of $11,000 to be paid him by the plaintiff in such capital stock, assented to the sale and transfer by the plaintiff to the defendant of the rights and property conveyed by the indenture of April 15,1882, free and clear from all claims on Anderson’s part thereon, and wherein it ivas further agreed that plaintiff should not engage in any similar business thereafter, hut should give all his influence to the interests and success of defendant’s business; that he should pay all the debts and liabilities of the business then existing, and that the defendant might retain unissued an amount of such capital stock equal at par value to double the amount of the debts, etc., then outstanding.
    The defendant, under this agreement, at once took possession of the property so sold and transferred, and has ever since retained the same.
    The defendant, at the time the agreement was made and the property was delivered, made out and executed in due form certificates in plaintiff’s name for 350 shares of its stock of the par value of $35,000, and plaintiff indorsed the certificates for the purpose of the" transfer of the same and left them with the defendant. Defendant has paid plaintiff, on account of 200 shares thereof, the sum of $20,000 and has retained the remaining 150 shares, hut has paid him nothing therefor. There was no dispute as to these facts.
    The defense alleged on the part of the defendant was that the full amount, $35,000, of stock was issued to plaintiff, and that $15,000 of it was turned over by plaintiff to the defendant under an agreement, made at the time the defendant was formed, between the plaintiff and the other parties interested in the defendant, that this amount of capital stock should be turned over by the plaintiff to the defendant to he used for the defendant’s benefit..
    The whole controversy on the trial was over the question as to whether this, alleged agreement was made and the $15,000 of stock was turned over to the defendant pursuant to this agreement.
    The plaintiff testified that no such agreement was made and no such disposition of the $15,000 of stock was made. Six witnesses, whose evidence bore more or less distinctly upon this question of fact, were sworn on the part of the defendant, in support of its alleged defense, and documents and letters were also put in evidence on the one side and the other bearing upon the question. At the close of the plaintiff’s evidence, and again at the close of all the evidence, a motion was made by defendant to take the case from the jury and direct a verdict for the defendant. The court held that the case was one for the jury, and it was accordingly summed up by counsel and submitted by the court to the jury, and a verdict was rendered in favor of the plaintiff for the $15,000. .
    A motion was made- by defendant upon the minutes to set'aside the verdict and for a new trial, upon the exceptions taken at the trial, and because the verdict was contrary to the evidence and the law' and for excessive damages.
    ' This motion was granted, and from the order so made this appeal is taken..
    
      Edward C. James and Abram I. Elkus, for the appellant.
    
      John M. Scribner, for the respondent.
   Williams, J.:

The real ground upon which the verdict was set aside was that it was unsupported by the evidence. The learned trial judge evidently regarded the verdict as an improper one, to be rendered upon the evidence in the case. He refused ■ to hear any argument upon the motion, but granted it as soon as it was made, remarking that he regarded the verdict as a present or gift to the plaintiff of $15,000, to which he had not a shadow of right, and he desired to place on record his disapproval of the verdict. He heard all the evidence, and seems to have had, at the close of the case, very decided views as to what the verdict should have been. We have examined' "the record arid the evidence, and may have formed our judgment ■as to what the verdict should have been, but it must be remembered that if the case was oné for the jury the verdict was not to be the-verdict of the trial court or of this court, but of the jury, and the •question is not whether the trial court was, or this court is, satisfied with the verdict, but whether it is a .case in which the parties had a, right to the judgment of twelve men as to the facts. If the Verdict ■of a jury may be set aside in any case where the court is not satisfied with' it, if the court must be satisfied as well as the jury, then the court may as well dispense with the' jury altogether and make the decision itself. ' The jury is entirely useless and unnecessary; This is not of course the rule. When the case is one that should properly be- submitted to the jury, its verdict must stand whether it is satisfactory to the court or not.

The parties have a right to try the case before-a jury, and to have its judgment as to the facts, and they cannot he deprived of such right. It is only where the evidence is uncontradicted or is so preponderating in one direction that a verdict to the contrary would indicate that the jury was actuated by favor, prejudice or passion, that the court is justified in taking the case from the jury and determining the facts itself. Where there is a fair conflict in the evidence, where there are witnesses on either side whose- credibility is to be determined, especially where the witnesses are parties to or interested in the action, where there are documents, papers and letters, and circumstances sworn to by witnesses, the effect of which is to be determined and the inferences from which are to be drawn, the questions of fact must be determined by the jury and not by the court. These principles of law are so well settled that no citation of authority therefor is necessary. We have only to apply them to the evidence in this case.

The defendant, by its answer and on tire trial, admitted substantially all the facts alleged by the plaintiff as a basis for a recovery of the $15,000, and his recovery could only be defeated by proving the parol contract to turn over the $15,000 of stock to the defendant after it had been issued to the plaintiff, and the performance of that contract by turning over the stock. The defendant had the burden of proof upon these questions. In the absence of any proof with reference to these questions, the plaintiff, upon the other con-. ceded facts, would have been entitled to a verdict, which the court might well have ordered. The defendant gave its proof as to the parol agreement, largely by witnesses who were interested in the event of the action, as plaintiff, who contradicted them, was also interested. The question of the credibility of all these witnesses was for the jury and not for the court. q

The only agreement in writing between the parties was the one upon which plaintiff based his right of action. This was under seal, and it made no reference to any such agreement as alleged by defendant. It is said by the defendant-that the contract was carried out by the issue of the certificates. for 150 shares of stock, as well as the 200 shares and the indorsement of the whole by plaintiff. That he did indorse the whole is conceded, but that the transaction was an issue to, and- transfer by, him of the stock under the parol agreement alleged, he denies.

It will be observed that the written agreement provided that the defendant should retain some unissued stock until certain debts, etc., were paid by the plaintiff. . The retaining of the certificates for the 150 shares of stock, after they were so indorsed by the plaintiff, was not, therefore, inconsistent with the plaintiff’s theory of the transaction. The defendant claims that the real consideration of the transfer of the property by the plaintiff was $20,000. The plaintiff claims that the consideration was truly stated in the contract in writing and under seal, and it is certain that the law only permitted stock to be issued in payment for property purchased at its real value. Letters written by plaintiff were put in evidence tending to corroborate defendant’s theory of the case, and were proper for the consideration of the jury. The effect of all the evidence in the determination of the controverted questions of fact we think was for the jury and not for the court. We do not desire to consider or discuss the evidence in detail. It is sufficient for us to say that in our opinion there was such a conflict in the evidence' that the court could not assume to determine the facts, but should have left them to be determined by the jury, and the verdict of the jury should not have been disturbed by the court.

Upon an examination of all the evidence we may say that we would have been better satisfied had the verdict been the other way. The balance of probabilities impresses us as inclining in favor of- the defendant’s claim.. But the final preponderance in its favor upon all the evidence is not -so great as to bring the case within- the rule Which permits a verdict to be set aside only when it is reached through partiality, passion or prejudice.

We conclude, therefore, that the order setting aside the verdict was erroneouSpand it should be reversed, with costs.

■ Yah Brunt, P, J., Barrett, Rumséy and Patterson, JJ., concurred.

Order reversed, with costs.  