LIEGEOIS 'D. :MCCRACKEN.·
(Oircuit Court, S. D. New York. 1.
PRACTICE-DEMURRER TO COMPLAINT.
A complaint which alleges that the parol contract sued on was valid under the law of the state where it was made and to be performed, and that it was for a good consideration, is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action.
On Demurrer. An action was brought on a parol contract, made by the defendant in Connecticut with the plaintiff, at the time residing there, but whom the defendant had the year before seduced in the state of California. In consideration of the seduction the defendant promised to pay the plaintiff annually during her life, for her board, the sum of $500, in monthly payments, and also such sums, not exceeding $500 a year, as should be necessary for her clothing. Payments were made by defendant for about a year, when he refused further to perform his contract. Such a contract by the laws of Connecticut, where it was made and was to be performed, was a valid contract, and the consideration sufficient in law to sustain an express promise made by the defendant to make reparation for injuries sustained by past seduction. Francis Fellowes, for plaintiff. E. J. Dooley, for defendant. BLATCHFORD, C. J. The complaint does not appear to be demurrable, as showing on its face that it does not state facts sufficient to constitute a cause of action. It sets forth that the contract sued on was a parol contract made in Connecticut, and to be performed there, and that by the law of Connecticut it was and is a valid contract in law, and the consideration for it, set forth in the complaint, was a good consideration for the promises contained in the contract. This seems to be so by the decision in Smith v. Richards, 29 Conn. 232. But, even if not so, the complaint alleges it to be so, and hence is not demurrable for the cause alleged. The defendant may answer in 20 days on payment of costs.
litReported by S. Nelson White, Esq., of the New York bar.
ME1'iGlS V. LEBANON MANUF'G CO.
MENGIS awl others v. LEBANON MANUF'G Co.(Cire/tit Court, S. D. NC1JJ York.
1. VEllDICT-WUEN COGItT WII,L SET ASIDE.
It is only where it is so palpahlc that the jury have erred as to suggest the prol;ahility that the verdict was the result of misapprehension or partiality, that th(' court will interfere to sct aside the verdict. It is not enough that the judge might havc arrived at a <ii/I('rent conclusion, nor that there may have been a strong prepOll(!crallCe of evidence in favor of the defeated party.
Motion to Set Aside Verdict. WALLACE, D. J. As one of the questions of fact in this case, the jury were called on to decide whether the plaintiff understood Mr. Meily to have general authority to represent the defendant in making a contract for the sale of cars, or understood him to be a broker for the defendant in the particlllar transaction. There was undoubtedly cogent evidence to show that the defendant's officers held Meily out to the plaintiffs as having general authority to bind the defendant in making such a contract; but, on the other hand, there was explicit testimony to the effect that the officers of the defendant had told one of the plaintiffs very recently that Meily was not their agent; that they would not appoint any agent; and that they acted, and intended to act. personally in such transactions. It was also fairly inferable, from the fact that plaintiffs asked for evidence of Meily's authority, that they were not satisfied to treat with him as a. general agent without the proof of his agency. It was a question of credibility of witnesses whether such written authority was or was not furnished by Meily. There was also indicia in the transaction which might justify an inference that the plaintiffs and Meily were co-operating together more with a view to securing commissions for than to obtain a satisfactory contract for the defendant. Upon the whole case, therefore, I am of opinion that a case is not made which would justify setting aside the verdict. It is not eI).ough that the judge might have arrived at a different conclusion, nor even that there may have been a strong preponclerance of evidence in favor of the defeated party. It is only where it is so palpable that the jury have erred as to suggest the probability that the verdict was the result of misapprehension or partiality, that the court will interfere. Motion denied.
v. Memphis rt C. R. Co. 7 FED. REP. 51.
*Rcjlorted by S. "'elson While, Esq., of the New York bar.