
    [No. 5445.]
    ADOLPH MARQUARD v. RICHARD WHEELER and FRANKLIN LAWTON.
    Surplusage nf Verdict to be Disregarded.—If the verdict of a jury goes beyond the issues raised by the pleadings, and passes upon an extraneous fact not embraced therein, it is void pro tanto, and the surplus matter may be disregarded in entering the judgment.
    Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.
    The plaintiff had judgment. The defendants moved for a new trial, which was denied, and they appealed. The other facts are stated in the opinion.
    
      Geo. W. Williams, for Appellants.
    
      Sidney V. Smith & Son, for Respondent.
   By the Court :

After the charge of the Court had been given, the record proceeds as follows: “ The jury retired, and after due deliberation returned into Court, and on the 10th day of March, 1876, rendered a verdict in writing, signed by their foreman, whereby they found for the plaintiff the sum of three thousand five hundred dollars in gold coin, which verdict was thereupon read to the jury by the Clerk of said Court.

“Whereupon, the jury, being instructed by the Court that a verdict could not be rendered in gold coin, again retired and returned into Court again and rendered a verdict for the plaintiff for the sum of three thousand nine hundred and seventy-seven dollars in United States currency. « To which verdict the counsel for the defendants excepted.”

The Court below erred in not receiving the verdict as first rendered, and this error operated a substantial injury to the appellants ; for upon their further deliberation the jury increased the amount found for the plaintiff some four hundred and seventy-seven dollars. It was of no legal consequence in this action that the verdict, as first returned, specified the amount found as “ gold coin,” for the complaint had not demanded gold coin, and the judgment should have been entered for the sum first found, disregarding the mere character of money in which the verdict had been found.

In Watson v. S. F. & H. B. R. R. Co. 50 Cal. 523, this precise question was before us, and we then said as follows: * * * “If the verdict goes beyond the issues raised by the pleadings, and passes upon an extraneous fact not embraced therein, it is void pro tanto, and the surplus matter may be disregarded in entering the judgment. In this case there was no issue as to whether the plaintiff’s demand was payable in gold coin, and the complaint contains no averment on that point. The words ‘ gold coin ’ in the verdict are therefore mere surplusage, and should have been disregarded in entering the judgment.”

Judgment and order reversed, and cause remanded for a new trial.  