
    Nutter v. The Junction Railroad Company.
    The appellee must assign cross errors if he seeks to have them noticed in the appellate Court.
    Where a verdict of a jury rests in calculation, and they find excessive damages, a new trial may be granted, if asked for, for such cause, and no remittitur is offered.
    APPEAL from the Fayette Circuit Court.
   Hanna, J.

Nutter, as assignee of Cully, sued the defendants.

The first paragraph is on an account; the second, on an account stated.

The account was made up of goods, moneys, &c., furnished to laborers, &c., on the second division of the road of defendants.

The defendants demurred, but we cannot pass upon that demurrer, nor upon the rulings of the Court in reference to various questions raised by the defendants during the progress of the trial, for the reason that no cross errors are assigned.

The defendants answered in three paragraphs—

1. A denial.

2. Set-off.

3. That the indebtedness accrued to Cully and Nutter, as partners, and not to Cully individually.

Reply in denial.

Trial by jury, verdict and judgment for plaintiff for 500 • dollars, over a motion by plaintiff for a new trial.

It appears from the evidence that the defendants, previous to the first of February, 1854, had a contract with Higdon and Chambers, for the construction of the second division of said road; about that date, in consequence of the dissatisfaction of laborers and others, an arrangement was made by which the company, through agents, was to pay the laborers and others for work thereafter done, and materials, &c., furnished; but whether the contractors surrendered, and the company assumed absolute control; is, by the evidence, a controverted point. Cully, who was introduced as a witness, testified that Woods, the president and acting superintendant of the road, agreed that the defendants should pay, and that the defendants did pay, him 2,900 dollars, due said Cully from said contractors on the first of February, 1854. To this point, much of , the voluminous testimony is directed.

We are not able to perceive how the jury, under the evidence, could find for the plaintiff the sum which was found. If anything should have been found, a point we do not express any opinion about, in view of the fact that another trial must be had, it was certainly a much larger' sum than that named in the verdict, even if the debt of Higdon and Chambers accrued previous to February 1, should have been excluded. Whether that should be included or not in the charge, against the company, is a question of fact proper for the jury hereafter to pass upon.

The claim of Cully accrued subsequent to February 1, is 9,404 dollars, which he swears to, and concerning which the directors, agents, and attorneys of the company, who were introduced by the defendants as witnesses, indirectly admit there was no controversy, by their testimony, to the effect that, in attempts to arrange the whole accounts, the matter in controversy was the fact whether the company were to pay the debt of Higdon & Co. to Cully prior to February 1, 1854.

The payments, according to the evidence of Cully, were about 7,000 dollars. Chambers, another witness, makes the amount less than that; and Leach, the secretary of the company, states the credits within his knowledge at a still greatly less sum.

After the first of February, it appears from the evidence that neither Higdon nor Chambers, the contractors, gave the work their personal attention; but that one Byrom received and paid out the money due on estimates, as the agent of the contractors and the company, as he states; and one Chambers kept, in the name of the said contractors, the accounts and books in regard to work done, materials, &c., furnished, and payments made. Whether he acted as a clerk and agent of the company, or in that capacity for the contractors, is a disputed question. He states that he was employed by, and acted for, the company. Members of the board, &c., state that - he was not in the employ of the company; but thaf the company paid him as any other person in the employ of the contractors was paid.

J. S. Reid and S. Heron, for the appellants.

S. W. Parker and J. C. McIntosh, for the appellees.

One paragraph of the complaint was based upon a balance of account struck by this witness and Cully, a statement or certificate of which he gave in writing, at the close of the business in August, 1854, which showed 6,178 dollars, 30 cents due Cully at that time. We have not been able to see that errors in this statement, at the time it was made, or payments afterwards made, were proved to an amount sufficient to reduce it near so low as the sum for which the verdict was returned, even if it was at all taken as a basis for any of the calculations made by the jury.

This case, we think, falls clearly within the rule in reference to those in which we will revise the finding on questions of fact.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  