
    Joseph J. Myers, Respondent, v. Frank L. Myers, Appellant.
    
      Verdict—when set aside became the amount thereof is not justified, by the evidence-
    In an action to recover for services performed by the plaintiff for the defendant, the only issue litigated was as to the compensation which the parties had. agreed that the plaintiff should receive for the services. According to the: plaintiff’s contention, the amount which he was entitled to recover was §900, while, according to the defendant’s contention, the plaintiff was not entitled tereco ver anything. The jury rendered a verdict in favor of the plaintiff for-§500.
    
      Held, that the verdict was not justified by the evidence and that the judgment entered thereon should be reversed;
    That the verdict rendered was clearly the result of a compromise and that it was;, impossible to say whether or not the defendant was unfavorably affected, thereby.
    A jury, in determining the amount of their verdict, cannot guess at such amount. They must be guided by the evidence and by the evidence alone; if there is no, evidence to support the verdict, it has no foundation and must fall.
    Appeal by the defendant, Frank L. Myers, from a judgment of the County Court of Steuben county in favor of the plaintiff, entered, in the office of the clerk of the county of Steuben on the 16th day-of October, 1902, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 22d day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes-The action was commenced on the 16th day of April,-1902, to recover for work, labor and services rendered and performed by the plaintiff for the defendant between the 1st day of October, 1896, and thei 1st day of April, 1902. The plaintiff claimed that it was agreed between him and the defendant that he, the plaintiff, should receive for the services rendered forty dollars per month. The defendant claimed that the compensation agreed upon was twenty-five dollars per month. This was substantially the only issue or dispute between the parties. The length of time which the plaintiff worked or the amount of money which had been paid to him by the defendant on account of such services was not put in issue by the testimony of the parties.
    According to the claim of the plaintiff, figuring his compensation at the-rate of $40 per month, the amount due and owing to him was substantially $900. According to the claim of the defendant, and figuring the compensation at $25 per month, the defendant was not indebted to the plaintiff in any sum whatever. The jury rendered a verdict in favor of the plaintiff for $500, and from the judgment entered thereon this appeal is taken.
    The sole question presented by this appeal is whether or not there is any evidence to support the verdict of the jury, in so far as. it determines the amount which is due and owing from the defendant to the plaintiff; and if not, whether the defendant is entitled to raise that question when, upon the evidence, the jury would have been justified in finding that the larger sum, or the full áínoünt claimed by the plaintiff^ was due and owing to him.
    
      F. A. Robbins and James A. Parsons, for the appellant.
    
      Milo M. Acker, for the respondent.
   McLennan, J.:

Counsel for the respondent urges that it is possible to interpret the evidence, when considered as a whole, in such manner as to make the verdict of the jury consistent, and our attention is called to some apparently casual statements made by a witness called by the defendant, to the effect that the term of employment • commenced at a later period than testified to by the parties. From a careful examination of the evidence we think it is not susceptible ■of such interpretation. The parties by their evidence agreed as to when the employment commenced. They agreed as to the amount which had been paid by the defendant on account of the services rendered by the plaintiff, and the evidence to which attention has been called is not sufficient to raise an issue of fact as to those questions. We, therefore, must assume that upon the evidence the jury was only entitled to render one of two verdicts — either a verdict in favor of the plaintiff for substantially $900, or a verdict in favor ■of the defendant for substantially no cause of action, and that the evidence did not in any sense support the verdict rendered.

Parties to a litigation, the defendant as well as the plaintiff, are entitled to have the issues submitted to the jury decided solely upon the evidence, and either party has just cause for complaint if that is not done. In the case at bar the defendant was entitled to have the jury determine whether plaintiff’s rate of compensation was forty dollars or twenty-five dollars per month, that being the only issue which was properly before them for consideration; and he was entitled to have that issue determined uninfluenced by any plan of compromise as to the amount which should be awarded as a result of the decision upon that issue. The verdict rendered was clearly a compromise, and whether or not it unfavorably affected the defendant it is impossible to say. It is sufficient that it was not justified by the evidence, and, therefore, the judgment entered thereon should be reversed.

We think the rule is correctly stated in Oliver v. Moore (12 N. Y. Supp. 343), in which the court said: “ The jury are to be guided by the evidence. They cannot guess at an amount which should be due to the plaintiff. They must find their verdict upon the evidence, and upon the evidence alone; and if there is no evidence to support their verdict it has no foundation and must fall.”

In the case of Bigelow v. Garwitz (15 N. Y. Supp. 940) the amount claimed and liquidated was $221.80, and the jury rendered a verdict for $100. The court said: “ The jury rendered their verdict in favor of the plaintiff for $100. It was properly set aside. It was in direct contravention of the instructions of the court, and was manifestly the result of a compromise. It was a verdict which the jury had no right to render, and which the court might well have set aside on its own motion.”

To the same effect is the case of Powers v. Gouraud (19 Misc. Rep. 268).

Upon principle and upon authority .as well, we think the judgment and order appealed from should- be reversed and a new trial granted.

All concurred.

Judgment and order reversed and new trial ordered, with costs, to the appellant to abide' event, upon questions of law only, the facts having been examined and no error found therein.  