Waxelbaum & Co. v. Limberger

Hall, Justice. 1. The evidence on the material questions in this case was directly conflicting, and no abuse of discretion can be imputed to the court for refusing to grant a new trial upon the first and second grounds of the motion, which complained that the verdict was contrary to evidence and the weight of evidence, without evidence to support it, against the principles of equity and justice and contrary to law. 2. Nor do we think that the defendants can complain because they were not allowed to set off the wages earned by the plaintiff in the interval between the date of his discharge from their service to that when his term would have ended according to his contract with them. True the jury found for him the full amount of the eight months’ stipend which he claimed, without any abatement on account of what he received from others during the term of his employment by them; but unless he deducted this amount from the verdict, a new trial was ordered, and if he did so, it was refused. He complied with the condition imposed, and thereby prevented another hearing of the case. This was an answer to defendant’s complaint on this score. [46] 3. Another ground of the motion insists that there was error in allowing the plaintiff to prove his expenses and outlay of $250.00, in order to lessen or absorb the set-off claimed by defendants for profits or wages made in other employment during the term he had contracted to serve them. If this was error, it did not hurt the defendants, is nee the judge required the plaintiff to write off the amount against which these expenditures were set-offs from the verdict, as the condition upon which it should stand, and with which requirement he immediately complied. 4. The remaining ground of the motion has been anticipated in considering the first and second grounds of the motion. There was certainly no question in this case more stubbornly contested, and none upon which the evidence was more decidedly conflicting, than the qualifications of the plaintiff as a salesman, competent to carry on that branch of the business and to meet all the requirements of the Southern trade. This issue was fairly submitted to the jury, and it was their province to credit the plaintiff rather than the defendants’ witnesses. 5. Damages are asked for bringing the case to this court, as it is insisted, for delay only, and while it may approach, yet it does not quite reach, the point that demands a compliance with the claim, for the weight of evidence raises considerable doubt whether the plaintiff complied with the directions of the defendants to turn a customer over to the other clerks in the establishment, when he tried but failed to sell him goods. This afforded some ground, slight though it may seem, on which to found the expectation of a reversal of the judgment of the court rendered on the motion for a new trial. Judgment affirmed.