Fallon v. Clifton Manufacturing Co.

Sheldon, J. 1. There was evidence that the treasurer of the defendant agreed with the plaintiff to pay him the sum of $50 per week for the services which he was to render; that he rendered these services with the knowledge and consent of the defendant and its officers; and that he was paid at that rate for about five months. This warranted a finding that the treasurer’s agreement had been either originally authorized or subsequently ratified by the corporation. And Chick, the defendant’s secretary, testified that when the plaintiff’s bill was presented at a [496] meeting of the directors, “it was allowed he was owed this amount, but we wanted to try and make the best settlement we could.” His further testimony, apparently on cross-examination, that all the directors thought “ that they did not owe him anything,” was to be weighed only in connection with what he formerly had said. Dunton v. Derby Desk Co. 186 Mass. 35. 2. It may be, though we should hesitate so to decide, that a verdict for the plaintiff on the second count was not warranted. There was to be sure nothing to indicate what the usual commission in such a case was. But this is not now material; for if the jury allowed him any commission it is evident from the amount of the verdict that the finding as to that must have been upon the third count. 3. Upon the third count the evidence was meagre, but there was something for the jury. Besides the plaintiff’s testimony as to his agreement with the treasurer it could be found on Chick’s testimony that this matter too was brought before the board of directors by Chick’s memorandum on the plaintiff’s bill for services, and was included in their approval, in spite of Chick’s further testimony already stated. 4. Under these circumstances, the defendant was not harmed by the order made on the plaintiff’s motion that the verdict should be entered on the first count, and that judgment should be entered for the defendant on the second and third counts. The averment in that motion, “ that the evidence at the trial would have warranted that verdict on the first count, and upon no other,” may be treated as meaning only that a verdict for that amount, being the sum claimed in the first count with interest from the date of the writ, must have been rendered upon that count alone. Whether or not this conclusion is an absolutely necessary one, it is yet manifest that a judgment upon the verdict as amended gives to the plaintiff exactly what the jury found and were warranted in finding to be due to him, and finally disposes of all the issues in the case. Computation shows that the verdict was for the amount claimed in the first count with interest to the date of the verdict; arid therefore it is highly probable, if not practically certain, that the verdict was rendered upon the first count only. See Ashton [497] v. Touhey, 131 Mass. 26 ; Commonwealth v. Delehan, 148 Mass. 254; Minot v. Boston, 201 Mass. 10, 13. Justice does not require a new trial. Exceptions overruled.