66

Kelly v. Cunningham.

In the case of Payne v. P.M.S.S. Co., (ante, p. 33,) decided at the first term of this court, we expressed our views in regard to the interference of courts with the finding of juries in a case of unliquidated damages. We then held that "a court ought never "to set aside a verdict because of excessive damages, unless, "beyond doubt, the verdict be unjust and oppressive,―obtained through some undue advantage, mistake,-or in violation of "law; as upon questions so peculiarly pertaining to the powers "and investigation of the jury, it ought to be presumed that the "verdict is correct." The statute designates three causes which shall entitle parties to a new trial, vesting in the sound discretion of the court the granting thereof. The one relied on in the case at bar is that "the judgment is clearly contrary to law and "evidence." The court below seems to have been of opinion that this case came within the rule, and that "beyond doubt the "verdict was unjust and oppressive." This view appears also to have been taken by plaintiff's attorney who assented to the diminution of the judgment required by the court. It can scarcely be just ground of complaint on the part of appellants that the judgment of the court stands for but one-half the amount, for which the verdict of the jury was rendered. The respondent, if he had not acquiesced in the action of the court below by filing his remittitur, might, with more reason, have sought the intervention of this court to sustain the finding of the jury, but he also is precluded, for if such right existed, he has waived it by his own act.

Judgment affirmed.

KELLY et al. vs. CUNNINGHAM et al.

An action to recover damages for collision cannot be sustained where the injury of which the plaintiff complains has resulted from the negligence of both parties: so held, where a brig lying in the harbor of San Francisco in the usual track of bay and river steamers, without having any light hung out, was run into and damaged by a river steamer when entering the harbor on her usual course and with dimin

Kelly v. Cunningham.

ished speed, it appearing that there was no intentional wrong on the part of the defendants and held further, that if ordinary prudence required the brig to show a light, the fact that it was a common practice in the harbor to neglect to do so, was no excuse; it appearing that the brig lay in a more dangerous situation than most of the shipping in the harbor.

A jury should make up their verdict from the facts according to the law as given to them by the court: and it seems that it is improper for a court to charge the jury "to take into consideration all of the facts and do equal justice between the "parties;" inasmuch as an instruction so general in its terms may mislead them. Per HASTINGS, Ch. J.

APPEAL from the superior court of the city of San Francisco, where judgment was rendered in favor of the plaintiffs. The facts upon which the decision of this court was based are given in the opinion of the chief justice.

for the plaintiffs.

Allen T. Wilson, for the defendants.

By the Court, HASTINGS, Ch. J. It appears from the testimony that on the night of the 7th of September, A.D. 1850, the brig Caleb Curtis was anchored in the roadstead (not in the harbor) of San Francisco, in or near the track of bay and river steamers. The steamer Senator from Sacramento City, on her usual course in entering the harbor, about 9 o'clock at night of the 7th, came in collision with the brig by which both vessels were damaged. This action was brought by the owners of the brig against the master and owners of the steamer for recovery of damages. The night was dark and foggy-the steamer at half her usual speed-the brig being without lights or a watch on her decks. The testimony is voluminous and in many things contradictory; but it appears from the testimony of several experienced seamen, who are not contradicted, that in the position of the brig "common prudence" and "self preservation" required lights and a watch. It is not contended that the collision was intentional, but that it occurred from a want of care and diligence on the part of the master of the steamer. The court was requested to instruct the jury "that if both parties were guilty

Kelly v. Cunningham.

"of negligence the jury must find for the defendants." This the court gave with a qualification. We think the instruction should have been given as asked.

In the case of Brownell v. Flagler, (5 Hill's Rep. 282,) the court say, "in an action on the case where the injury of which "plaintiff complains has resulted from the negligence of both "parties, without any intentional wrong on the part of the de"fendant, the action cannot be maintained," and a reference is there made to numerous cases in support of this principle.

The following instruction, viz.: "That if common prudence "required the Caleb Curtis to hang out a light, the fact that it was a common practice in this harbor to neglect to do so, is "no excuse," should have been given without any explanation of the words "common prudence." These words have no technical meaning, and what the explanation was, does not appear. The court finally instructed the jury to "take into considera"tion all of the case and do equal justice between the par"ties." This, it is believed, is submitting too much to the jury. They are to pass upon the facts, the court upon the law. The jury should make up their verdict from the facts, according to the law as given by the court, and then "equal justice be

tween the parties" will generally be the result; but if the jury are to find according to their views of equal justice, it is to be apprehended, that in many cases, prejudice and feeling may make that appear to be "equal justice" in one case, which would be iniquitous in another. This instruction tends to mislead and confuse the minds of the jury. The verdict of the jury is not sustained by the evidence. The position of the brig required for her own safety a watch and lights; for want of this reasonable and ordinary care the action should not be maintained. The judgment is therefore reversed, and case remanded.

Bernard v. Mullot.

BERNARD 28. MULLOT and others.

To entitle a defendant to set off a claim against the demand of the plaintiff, he must set forth in his answer the nature of the claim which he intends to set off-and where this was not done; Held, that the court below properly rejected evidence of the claim proposed to be set off.

APPEAL from the district court of the fourth judicial district, where judgment was rendered in favor of the plaintiff. The cause was tried before the district judge without a jury. At the trial the defendants proposed to give evidence of a certain demand which they claimed to have against the plaintiff, as a set-off, or by way of reducing the amount of the plaintiff's recovery. This evidence was objected to on the ground that there was no allegation in the answer setting up such a claim, and the district judge refused to allow the set-off upon this ground, and gave judgment in favor of the plaintiff, from which the defendants appeal.

By the Court, HASTINGS, Ch. J. The respondent brought his action to recover the sum of $810 for services rendered by him as a clerk in the employ of the defendants. The correctness of the demand was admitted subject to a set-off of cash advanced which was allowed by the court. The defendants also claimed as an additional set-off, the balance due on certain promissory notes placed in the hands of the respondent, as their clerk, for collection, which exceeded plaintiff's demand.

The court rejected the balance claimed and rendered judg ment for the plaintiff; and the only question is, whether there was error in refusing to allow the same.

The defendants' off-set should be as distinctly stated as the plaintiff's demand; this is required by the statute. In this case no accurate description of the notes was given in the answer. A recovery could not be had on the notes thus described, because the judgment would not be a bar to another action on the

Persse v. Cole.

same notes. The notes were given to the plaintiff as a clerk, and as such he is liable only in two events, viz.: 1st. If he has collected and refuses to pay the same; 2d. If not having collected the money, he has converted the notes and refuses to account for the same.

There is no averment in the answer of a conversion nor of the collection of the money. And for aught that appears in the answer or testimony the plaintiff was willing to account for the notes when called upon.

We think clearly there is no error in the judgment of the court, and it is therefore affirmed with costs.

PERSSE et al. vs. COLE.

Where this court sees clearly and beyond all doubt that the rejection of proper, or the admission of improper evidence, could in no way materially affect the result, the judgment of an inferior court will not, on that ground, be disturbed. A.. purchased of the plaintiffs in the city of New York certain merchandise, and gave his promissory note payable in six months for the purchase money. The goods were shipped for San Francisco, and, by the bill of lading as well as by the agreement of the parties, were deliverable to the order of the shippers; but they were were insured for and on account of A.; at the time of the purchase, he received a bill of sale, gave his note for the purchase money, and took a receipt for its payment, and the acts of the plaintiffs in New York, and of their agent in San Francisco upon the arrival of the goods there, as well as the conduct of A. indicated that all parties considered the transaction as a sale of the goods to A., subject to the right of the plaintiffs to retain possession until the payment of the note given by A. :— Held, in an action by the plaintiffs against the master of the vessel on which the goods were shipped, to recover the market value thereof at San Francisco, on account of his having delivered them to A. without the orders of the shippers, that the transaction between the plaintiffs and A. was a sale, and transferred to the latter the property in the goods, subject to a lien thereon for the purchase money in favor of the plaintiffs, and that the master of the vessel was liable to the plaintiff's only for the value of the plaintiffs' property in the goods with interest. Instead of remanding a cause for a new trial, where the judgment below is erroneous, this court will so modify it as finally to settle the controversy, when the rights of the parties appear from the record to be fully ascertained.