Avery & Co. v. Thomason & Son

Powell, J. According to the allegations of the defendants5' plea, they owed the plaintiffs only $4.66, and for that sum the jury rendered their verdict — the verdict being plainly intended as. a finding upon this plea. There are a number of assignments of' error in the record, relating to rulings of the court upon the evidence and to instructions to the jury; but no material error in this respect appears. It does appear, however, that the calculation by which the amount of $4.66 was arrived at is incorrect. The plea shows this on its face. The amount really left due upon the note was $10.68, and for this sum a verdict against the defendants-was demanded. The whole question involved in the trial was. where a certain credit of $300 should have been placed, and, after placing this credit as claimed by the defendants, there was still due on the note $10.68. Ordinarily this court has no power by direction to increase the size, of a verdict; but inasmuch as, under the pleadings, a verdict of $10.68 could have been directed (since,, when the defendants5 plea is properly construed, it admits a liability of that amount), and as the verdict has properly settled the only issue in the case, we do give direction that the trial judge, modify the judgment in the lower court, so as to allow the plaintiffs a recovery of $7.36 principal $2.35 interest to judgment, and 97 cents attorney’s fees, with interest thereon from the date of the-trial. Judgment affirmed, with direction.