
    Martine v. Huyler.
    
      (Supreme Court, General Term, Second Department.
    
    February 10, 1890.)
    1. Master and Servant—Compensation—Weight of Evidence.
    In an action for a balance due for services performed in taking care of defendant’s property, collecting rents, etc., during a period of over seven years, plaintiff and bis wife testified that defendant bad agreed to pay plaintiff $0 per day for the first year, and $2.50 per day for all succeeding years. Defendant and her husband testified that the compensation was fixed at $48 per month. It appeared that out of the rents collected by him plaintiff had for 39 months retained $48 per month as his salary, for 43 months, §52 per month, and for 3 months, $54 per month. Neither defendant nor her husband, however, had any knowledge of the increased deductions; the monthly settlements being made with a clerk in defendant’s employ. It also appeared that plaintiff borrowed §40 from defendant, and gave his note therefor, at a time when, according to his present contention, several hundred dollars were due him. When plaintiff left defendant’s employ, he paid over to defendant’s clerk §153, without interposing any claim for a balance due him, though he was asked if he was all paid up. Held, that there was such a preponderance of evidence against plaintiff’s claim, which was entirely inconsistent with his past conduct, that a verdict in his favor would be set aside".
    
      2. Same—Accounts—Estoppel.
    In the absence of mistake, the rendition by plaintiff of monthly statements of receipts and disbursements, in which he charged his monthly salary among the disbursements, and the acceptance of the statements by defendant’s clerk, are conclusive on both parties as to the amount of plaintiff’s salary.
    3. Appeal—Review of Pacts.
    An appeal from a judgment based on a verdict of a jury furnishes questions of law only for examination; but an appeal from an order denying a motion for a new trial on the minutes of the court brings up the whole case, and gives the general term jurisdiction to review the facts, and to ascertain and determine whether the verdict rendered has sufficient support from the evidence.
    Appeal from circuit court, Kings county.
    Action by Henry 0. Martins against Martha M. Huyler to recover $5,442 for a balance due for services performed while in defendant’s employ. The jury returned a verdict of $2,167 in plaintiff’s favor; and from a judgment thereon, and from an order denying her motion for a new trial on the minutes, defendant appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      E. B. Amend, (Samuel Cohn, of counsel,) for appellant. Horace E. Deming, (Charles E. Demond, of counsel,) for respondent.
   Dykman, J.

An appeal from a judgment based upon a verdict of a jury furnishes questions of law only for examination. In this case, however, the record discloses no exceptions on the part of the appellant, and therefore the appeal from the judgment presents nothing for review; there being some evidence to support the verdict. But the appeal from the order denying the motion for a new trial on the minutes of the court brings before us the whole case, and gives us jurisdiction and power to review the facts, and ascertain and determine whether the verdict rendered has sufficient support from the evidence.

Under our system of jurisprudence, it is the exclusive province of the jury to pass upon the questions of fact involved, subject to the supervisory power of the court on appeal, and it has been often said that the appellate tribunals interfere with verdicts with reluctance; but the observation does not imply unwillingness on the part of the courts to enter upon an examination of the testimony, and determine its sufficiency to justify the conclusion reached by the jury. On the contrary, it is the imperative duty of the court to scrutinize the testimony, and find whether its leads legitimately to the verdict rendered, or whether it be the product of mistake, partiality, corruption, passion, or prejudice, or is against the striking preponderance of the -proof; and, if it can be fairly determined from the evidence that the verdict is the result of either of the causes enumerated, it will be set aside. Veneration for the system of trial by jury cannot properly engender aversion to disturbance of verdicts, for experience teaches us that infallibility is not an invariable concomitant of the jury verdicts. These remarks are not made for the disparagement of the jury system, or the results of jury trials, but simply to justify the exercise of the right, and the discharge of the duty, of the court to make a full and fearless examination of the evidence in cases like the present, for the detection and correction of error, and to follow and declare the dictates of right, reason, law, and discretion without aversion, even though the result affects the overthrow of the verdict of a jury. Carrying with us the light obtained from these principles, let us now turn to the examination of the questions of fact involved in the appeal.

The case is this: In the forepart of the year 1878, the plaintiff was employed to take charge of the property of the defendant, attend to the reparation of the same, collect the rents, and pay them over, after a deduction of the •expenses; and he entered upon the employment March 1,1878, and continued in t-he service until the last of March, 1885, a period of seven years and one month. So far there is no dispute about the facts, but the controversy arises about the rate of the plaintiff’s compensation. He says he was to receive $2 a day for the first year, and $2.50 a day for all the succeeding years; and this action is for the recovery of the balance due him at those rates, after deducting the amounts he has received from time to time during the rendition of his services. Upon the trial the plaintiff testified that under the agreement for his services he was to be paid $2 a day for the first year, and $2.50 a day for the succeeding years; and his wife testified to her presence at the time when the agreement was made, and corroborated his testimony respecting the rate of his compensation. Such was the evidence on the part of the plaintiff, and then the following proof was introdued on behalf of the defendant: The testimony of Dr. Huyler, the husband of the defendant, taken on a former trial of the action, was read; and he testified that he made the contract with the plaintiff, and that the agreement was for $48 a month, with apartments to live in, at Newark, N. J., and that the plaintiff agreed to take thatsalary, and that nothing was said about $2.50 a day. The defendant testified, in her own behalf, that she was present at the interview when the plaintiff was employed; that nothing was said about $2 or $2.50 a day, and that nothing was said about hiring the plaintiff for a year, or for more than a year; that her husband told him he would give him $48 a month, and they arranged for $48 a month, and apartments to live in.

Those four witnesses furnished all the oral testimony given on the trial on the subject of the plaintiff's compensation, but the following facts appeared, and were laid before jury: During all the time of the plaintiff’s service, he rendered monthly statements of the amounts collected, and the expenses incurred, and credited himself in such statements with his salary, sometimes employing the words “salary to Martine,” or “Martine’s salary,” or “H. 0. M., salary;” and from March, 1878, to May, 1881, inclusive, he so retained $48 a month; from June, 1881, to August, 1881, inclusive, he retained $54 a month; and from September, 1881, to March, 1885, inclusive, he retained $52 a month. In the latter part of the summer of 1883, the plaintiff was overtaken with misfortune, and required money to meet increased expenses, and he applied to a clerk of Dr. Huyler for a loan of $40. The request was communicated to the doctor, who directed his clerk to make the loan, and ,it was made accordingly; and the plaintiff gave his promissory note for $40, and agreed to liquidate the same by installments of $5 a month. After the note ran for several months, the plaintiff went to the office to make his return of rents, when the doctor made some inquiry about the $40, and the plaintiff said he could not pay it; and thereupon the doctor tore up the note, and forgave the debt. When the plaintiff left the service of the defendant, on the 1st day of April, 1885, he paid over to the clerk of her husband $153.71, and made no mention of any claim for arrearages, although the clerk testified that he informed him that they did a cash business, and asked him if he was all paid up, and he said he was. The plaintiff made no denial of that testimony of the clerk, although he returned to the witness stand after it was delivered. We thus find the case of the plaintiff supported by the testimony of himself and wife, and some deduction is to be made from the credibility of the latter as a result of the testimony of Dr. Huyler, that she was not present when the agreement was made with her husband, and his failure to say she was. In opposition and answer to the.case so made, we have the oral testimony of the defendant and her husband- that the salary of the plaintiff was $48 a month, corroborated by the conduct of the plaintiff in the deduction and retention of that exact sum as salary each month for 39 months. The counsel for the plaintiff endeavored to palliate the force of the legitimate inference from the action of the plaintiff in the retention of the sum of $48 a month for salary by the fact that for 3 months he retained $54 a month, and 43 months he retained $52 a month.for such salary. The retention of a sum beyond $48 a month would be very forcible evidence against the defendant if it had been brought to her knowledge; but it never was, and neither the defendant nor her husband ever had knowledge of the increased deduction, and cannot therefore be charged with acquiescence therein. The settlements of the plaintiff were all made with clerks, who assumed the correctness of the charge for salary all through. The loaning of the sum of $40 to meet a pressing demand, and the execution of a promissory note therefor, raises a presumption against the plaintiff and his claim which he made no effort to overcome. He was pressed by counsel and the court to explain why he borrowed money, and gave a note for it, when, according to his present position and claim, he had a legal claim and right to draw hundreds of dollars from the very party of whom he solicited and accepted a loan of the comparatively small sum of $40. He-gave no such explanation, and stated substantially that he had none to offer. Under the peculiar circumstances of this case, the loan, and the.execution of the promissory note therefor, raised a presumption amounting to decisive evidence that he then had no claim against the defendant. Then the payment-of the balance remaining in his hands for collections of rent, when he left, without the interposition of any claim, although asked if he was all paid up, is a circumstance so absolutely inconsistent with his present theory as to afford conclusive evidence of its falsity, and even absurdity.

Again, the plaintiff returned monthly statements of his collections and disbursements, charging among the latter his monthly salary, as we have already seen. These statements emanated from the plaintiff, and in legal effect constituted representations on his part of the accuracy, validity, and honesty of every item in the accounts. In the absence of mistakes, he was concluded by them; and when they were accepted, as they all were, by the clerks of the defendant’s husband, they were conclusive upon both parties. They were monthly statements. There were no mistakes, and no reservations, and when the plaintiff set down his salary once a month, for 95 months, and had it allowed at his figures, that very act amounted to a representation that the amount so retained was his monthly salary, and he is now estopped from making any different claim; otherwise, he would profit by his own misrepresentation, for the rendition of his statement was, as we have seen, a declaration that he had each month retained the full amount of his salary, and was so antagonistic to his present attitude as to be sufficient for its condemnation. The conduct of parties speaks with more certainty than-their words. All men are presumed to contemplate the necessary consequences and results of their own voluntary action, and the contemporaneous acts of the parties in the execution and performance of their contracts constitute proofs of their understanding and construction of the same of the most satisfactory character. The acts and conduct of the plaintiff have all been entirely inconsistent and irreconcilable with his present theory and claims, while they have all been entirely consistent with the position and theory of the defendant; and so we find the evidence and the inferences so preponderating against the claim of the plaintiff as to satisfy us that the verdict was the result of either passion, prejudice, partiality, or mistake, and we have no hesitation in pronouncing it erroneous and unjust. Placing the testimony of the plaintiff and his wife on an equality with that of the defendant and her husband, which is more than the plaintiff can fairly claim, the other undisputed facts, and the legitimate inferences which they justify, lead to a conclusion entirely inconsistent with the plaintiff’s claim. The judgment should therefore be reversed, and a new trial granted, with costs to abide the event.  