
    4066.
    Southern Cement Stone Company v. Flinn.
   Hill, C. J.

1. The 1st, 2d, 3d, 4th, and 5th grounds of the amendment to the motion for a new trial are only amplifications of the general grounds of the motion, and raise no other question than that the verdict is not supported by the evidence and is therefore contrary to law. The evidence was in sharp conflict on the controlling issue of fact, and can • not be disturbed by this court.

2. The 6th ground of the amendment to the motion for a new trial assigns error because the verdict is not unanimous, one of the jurors having stated to the court that the verdict was not his verdict. In a note to this ground the trial judge states, that no request was made to poll the jury; that when the case was submitted to the jury the previous night, it was agreed by counsel for both parties that if the jury found a verdict during the night, they could disperse, and that the verdict should be retained by the foreman and received in court the next morning. The jury reached a verdict during the night and dispersed. Next morning the foreman handed the verdict to the clerk, who published it, and the jury were discharged. A few minutes thereafter one of the jurors stated to the judge privately that he did not want to agree to the verdict, and only did so because he did not want to remain in the jury-room all night. Held, that there was no error in the refusal of the judge to reassemble the jury for further consideration of the case.

Decided September 17, 1912.

Complaint; from city court of Brunswick — Judge Krauss. December 16, 1911.

Ernest Dart, for plaintiff. Courtland Symmes, for defendant.

3. The 7th and 10th grounds of the amendment to the motion for a new trial are not approved by the trial judge, and can not' be considered by the court.

4. The verdict being for the defendant, an instruction to the jury as to what they should find as interest if they found for the plaintiff, even if erroneous, was harmless.

5. The remaining grounds of the motion for a new trial contain objections to excerpts from the charge of the court, and, when considered in connection with the entire charge, are without merit.

Judgment affirmed.  