Curtis v. Wheeler & Wilson Manufacturing Co.

Ingraham, J. I think the judgment should be reversed, and a new trial granted, on the ground that the verdict of the jury, where they found that there was a contract whereby the defendant agreed to pay plaintiff $5,000 for the machine, was against the weight of evidence. The plaintiff’s testimony as to such agreement is entirely uncorroborated by any other testimony. All that Louise Cadmus, who was called for the plaintiff, testifies to was that she did not hear Mr. Wheeler refuse to give $5,000, and, so far I can see, nobody has ever testified that Mr. Wheeler did refuse to give $5,000; the question being whether or not Mr. Wheeler did agree to pay that sum to the plaintiff. The making of such an agreement is expressly denied by Mr. Wheeler, and his denial is corroborated by all the probabilities of the case; by the letters written by plaintiff to defendant two or three years subsequent to the alleged promise, and long before the commencement of the action; the transactions between the plaintiff and Mr. Gordon at the time the alleged settlement took place; and the fact that no claim was made for the $5,000 for a long time after the alleged contract was made. Theffetters written by plaintiff to Mr. Wheeler are absolutely inconsistent with the existence of the contract claimed by plaintiff. In all of these letters the claim is made that the plaintiff, is entitled to one dollar on each machine. That claim is expressly stated in the letter of April 5,1880, and the letter of April 3,1882. Ho good purpose will be subserved by an extended analysis of the testimony that has led us to this conclusion. It is sufficient to say that this conclusion has been arrived at by a careful consideration of the whole testimony. It has been held by this court, where plaintiff’s testimony to sustain his cause of action was uncorroborated, and was contradicted by letters written by him to the ■defendant long before the commencement of the action, that a verdict in fa49 var of plaintiff will be set aside, and a new trial granted, as in such case the jury was bound to disregard the testimony of the plaintiff, and the verdict was against the weight of evidence. See Boyd v. Colt, 20 How. Pr. 384; Manufacturing Co. v. Foster, 51 Barb. 351; Lynch v. Pyne, 52 How. Pr. 435. There was, however, no motion made to dismiss the complaint, and the question is before us on the appeal from the order denying the motion for a new trial. That order and the judgment should be reversed, and a new trial granted, on payment of the costs of the trial, including witness fees and other disbursements, with costs of this appeal to appellant to abide the event. All concur