
    Joseph Kleb, Respondent, v. Samuel Wallach and Others, Appellants.
    
      Verdict — unsupported by the evidence—proof that a business increased is not competent evidence as to the amount to be paid for inventions used in it.
    
    A verdict, unsupported by competent evidence and reached without instructions . as to the proper measure of damages, cannot be permitted to stand
    Where an action is brought to recover upon an implied promise to pay for the use of certain designs in jewelry invented by the plaintiff, a workman in the defendants’ employ, largely outside of his ordinary hours of work, evidence that, after the designs were made, the business of the defendants greatly increased, is improper.
    Appeal by the defendants, Samuel Wallach and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 25th day of March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of April, 1896, denying the defendants’ motion for a -new trial made upon the minutes.
    
      Joseph Fettreteh, for the appellants.
    
      George A. Stearns, for the respondent.
   Barrett, J. :

The plaintiff claimed compensation for the use by the defendants of certain designs in jewelry articles invented by him.- He was a workman in the employ of the defendants, and he avers that the designs in question were invented at odd hours, outside of his regular hours of work, and upon Sundays. There were two questions in the case, fii'si, whether there was an implied promise on the part of the defendants to pay for the use of these designs; and. second, what was the reasonable value of such use.

The plaintiff was in the defendants’ employ. ' There was no express agreement to pay him for the use of these designs-apart from his regular wages. Whether from the defendants’ request to make the designs an implied promise arose to pay for the use thereof, depended upon the special circumstances of the case. The making -of the designs was apparently not within the plaintiff’s regular employment. They were made largely oiitside of his ordinary hours of work. He says that one of the defendants told him to make them at home,, and that he made many of them there. There is other evidence tending to show that these particular services were not included in the plaintiff’s regular work, and that the defendants recognized the fact when they made the special request upon which the action is founded. We think there was enough at all events to go' to the jury upon this head, and that they were authorized to find an understanding between the parties that the plaintiff should be compensated for the extra and special services in question.

The plaintiff wholly failed, however, to prove the value of these services. He attempted to prove a custom as to the compensation for the use of such designs. Pie endeavored to show that it was the custom to allow therefor ten per cent upon the cost of each article made therefrom. We have examined the testimony carefully upon this head, and it is entirely clear that no such custom was proved, and that none such exists. Such a custom would be preposterous, and so indeed the jury must have thought — for their verdict bears no earthly relation to the plaintiff’s claim on this head.

The case was tried without the slightest regard to the rules of law governing the measure, of damages. The plaintiff was permitted to prove, under objection and exception, that when he first entered the defendants’ employ, there were but ten workmen in the shop, while after his designs came in, the business increased so rapidly that the defendants employed from sixty to seventy workmen. After this testimony had been repeated several times, the learned trial judge acknowledged that it was “utterly immaterial,” and stated that he admitted it for the purpose of hidulging the plaintiff’s counsel in his own theory of the case. It would have been better had the learned judge followed his own clear views—better for the speedy and correct, administration of justice, and better in the end for the plaintiff. But this testimony was worse than immaterial. It left the jury, in a case which was entirely barren of legal evidence as to the value of the plaintiff’s services, to speculate upon the general improvement in the defendants’ business occasioned by the plaintiff’s talent as a designer. It left them entirely free to give unliquidated damages. Then, too, the learned judge’s charge afforded the jury no guide upon this subject. There is not a suggestion as to the true rule or the proper measure of compensation. The jury were left entirely at sea to deal with idle and incompetent testimony according to their own notions, and were permitted in a general and loose way to do just what they pleased. A verdict thus unsupported by competent evidence, and arrived at without instructions as to the proper measure of compensation, cannot be permitted to stand.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.  