Cram v. Hadley

48 N.H. 191

Opinion

Sargent, J.

We think the verdict should be set aside, at least as far as the exemplary damages are concerned, as being against the law and the evidence. It is only where "the elements of fraud, malice, gross negligence or oppression mingle in the controversy,” that exemplary damages are to be given. Sedgwick on Damages, 39. And however the jury might have found in regard to M. M. Hadley if he had been a party, we see no evidence tending to show that this defendant was fraudulent, malicious, grossly negligent or oppressive in anything he did in this matter. All the defendant was shown to have known about the matter, was what he learned at the interview between plaintiff and his brother, as stated by him, and the case finds affirmatively that there was no other evidence but this to sustain the claim for exemplary damages. Fraud, malice, &c., will not be presumed without proof, and we think there was no proof of either; and the presiding justice who tried the cause certifies that 'there was nothing in the case that seemed to justify exemplary damages.

But the whole verdict should not be set aside for this cause if the plaintiffs will remit the exemplary damages. Where a verdict has been returned for a sum in damages too large, but the excess can be readily computed, and the plaintiff will remit the same, the verdict will not be set aside. Pierce v. Wood, 23 N. H. 519; Sanborn v. Emerson, 12 N. H. 58; Willard v. Stevens, 24 N. H. 271; Odlin v. Gove, 41 N. H. 478. These cases generally refer to mistakes of the jury, but we see no reason why the same rule may not apply to mistakes of the counsel and the court, as in this case. Cross v. Wilkins, 43 N. H. 332.

If the actual damages could not be separated from the exemplary, or if the evidence had been such that there could be doubt as to whether any exemplary damages were given, then, under the circumstances of this case, it would not be proper to set aside an entire verdict, a part of which was properly found, and the whole of which might be so ; while, if the defendant had seasonably excepted to the erroneous ruling, and requested proper instructions, the entire verdict would, under similar circumstances, have been set aside. But where the error and the amount of it distinctly appears, as in this case, there is no good reason why the court should not correct it even now, since it can be done with certainty and consistently with the exact rights of all parties.

The statement of Mrs. Cram as to what Bartlett told her would seem at first to be hearsay : and as Bartlett was a competent witness for both sides, he might have stated not only the offer which Hadley made to him, but the information which he conveyed to Airs. Cram in relation to that offer, and the jury might then have settled the question, upon that evidence, how the parties understood the trade relative to the logs.

But as the parties are now witnesses in chief, it may have been competent for Airs. Cram to state what the offer was, which was communicated to her from Al. M. Hadley, and whieh she intended to accept, as this would show what she understood the bargain to be. Then other proof must be introduced to show what Hadley did in fact offer and agree to.

Airs. Cram’s statement that Bartlett told her that Hadley made a certain offer or proposition would not be competent as tending to show that Hadley ever did make any such offer or proposition. Whether he did or not must be proved by other and competent testimony, but could not be proved by hearsay, such as Airs. Cram’s statement of what Bartlett had said about it out of court clearly would be. But after Airs. Cram had stated what was communicated to her as the offer, and how she thus understood the bargain, then it must be proved that Hadley did in fact make such offer ; that he did understand that the logs were included in the sale. And such evidence was produced. Bartlett was called as a witness and testified fully as to what Hadley said to him, what offer or proposition he made to him, and all the particulars as to that interview and negotiation.

Our impression is that Airs. Cram’s statement may have been competent for one purpose, that is, to show what the offer was that was communicated to her, and which she intended to accept, and if so, it was properly admitted, and it is to be presumed that proper instructions were given to the jury in relation to it.

The defendant would not have failed, of course, after such evidence was introduced for a special and specific purpose, to ask for instructions that such evidence was entirely incompetent to prove, and was not to be considered by the jury as tending to prove, that Hadley did in fact make such offer to Bartlett. That fact, if it was a fact, must stand upon its own ground, and be proved by competent evidence, not by hearsay ; and if the court had not, in pursuance of such request, so instructed the jury, we should have found an exception taken, which must, of course, have availed the defendant here. But no such exception appears. With proper instructions to the jury on that point, which we are to presume to have been given, we think the ruling was well enough.

What Bartlett said to Mrs. Cram would be entirely immaterial and incompetent, whether stated by him or her, unless it should be proved that Hadley had authorized him to make the statement which he did make to her ; but if that fact is proved by competent evidence, it is immaterial whether Bartlett or the plaintiff Mrs. Cram states the communication that was made to her; and if the same offer or proposition that Hadley made to Bartlett was in fact communicated to the plaintiff, then they both understood the matter alike, and the trade was made accordingly.

The plaintiffs may enter a remittitur for the exemplary damages, and take judgment for $42.29, with interest thereon from March, 1867.