
    JONES et al. v. SMITH et al.
    (Circuit Court, E. D. Pennsylvania.
    January 24, 1908.)
    No. 25.
    New Triau — Grounds—Veedict Not Warranted by Evidence.
    Where, on the evidence submitted to the jury, the plaintiff was entitled ¡ to a verdict in some amount, but the jury, not being so instructed, returned a verdict for defendant, a new trial must be granted regardless of the reservation at the Instance of defendant of the question whether plaintiff was entitled to recover as matter of law.
    [Ed. Note. — Eor cases in point, see Cent. Dig. vol. 37, New Trial, §§ 57, 59.J
    At Law. On motions by plaintiff for new trial and for judgment notwithstanding the verdict.
    Burr, Brown & Lloyd, for plaintiffs.
    Henry C. Boyer and Wm. A. Glasgow, Jr., for defendants.
   J. B. McPHERSON, District Judge.

The verdict in this case was wholly unexpected by the court. I assumed that the jury would find in favor of the equitable plaintiff for some amount, and that the legal question — whether there was any evidence at all to go to the jury in support of his claim — could then be determined upon considering further the reservation of the defendants’ first point. As it has turned out, however, it would have been better if I had given the instruction in so many words that the plaintiff was entitled to a verdict, leaving the amount only to be determined by the jury. The sole reason for not taking this course was because I did not see how a verdict against him could be rendered; aftd it seemed, therefore, that a formal submission could do no harm. But, as now appears, the submission did do harm, for the unlooked-for verdict has put the record in a condition that cannot be defended.

For obvious reasons, the motion for judgment in favor of the plaintiff notwithstanding the verdict cannot be granted, and is now refused ; but the motion for a new trial must prevail.  