(dissenting) : I regret that I am unable to agree that the judgment should be affirmed for two reasons.
*65The first assignment of error is based upon the overruling of an objection to a question put to the witness, Porter, “Did you not write to Mr. Richards under the date of January first, 1934, ‘We of course always assumed that as you stated you came to us from Lord Shaughnessy who was your friend. You would look to him for any commission you might feel you were entitled to’ ?”
The third assignment was based upon the ruling of the court that the letter, of which the language of the question was a part, was admissible.
The letter contained two statements harmful to the defendant. The first is in that sentence in which the writer, Porter, assumes that Richards would look to Shaughnessy for commissions to which he might feel he was entitled. The second is in the last paragraph in which it is stated that Hoyt said he realized that Richards would look to Shaughnessy for any compensation to which he thought he was entitled.
The second assignment is based upon the overruling of an objection to a question asked of Porter, “And you were content to go on with Mr. Richards assuming that he represented Canadian Industrial Alcohol, Limited, if he could bring them to a satisfactory conclusion?”
The court is agreed that the answer to the first question and the letter were not admissible under any theory of evidence, and that there was error. With respect to the second assignment, the court is of opinion that there was no error.
I agree that, compared with the error involved in the first and third assignments, the error involved in the second assignment pales into insignificance, but I think the question was an improper one. The form of the question was objectionable. The affirmative answer proved nothing. It *66was an effort, and a successful one, to get before the jury the idea of Porter’s conclusion that Richards was the defendant’s agent.
From repeated readings of the record of the testimony I am impressed with the persistent attempts of counsel for the plaintiffs to have in evidence the assumptions, conclusions, or if it may please, the thought or idea of Porter that Richards was the defendant’s agent, and should look to the defendant for his compensation.
The record shows at least three prior attempts, all of them, unsuccessful, to get before the jury Porter’s assumptions or conclusions. These questions were undoubtedly both improper and prejudicial. The first question was, “You assumed, Mr. Porter, in all these negotiations between Mr. Richards, yourself and Mr. Hoyt that Mr. Richards would get his commission in this deal from the Canadian Industrial Alcohol Company, Limited, did you not?” The form of the question suggested not only that Richards was entitled to a commission but would receive it from the defendant. The second question was shorter in form but was equally dangerous in its suggestion. It was, “You assumed that he was going to be paid by Canadian Industrial Alcohol Company, Limited?” The third was, “Didn’t you assume that fact, that he was going to be paid by Canadian Industrial Alcohol, Limited?”
The court properly sustained the objections interposed to these questions, as being mere hearsay and not binding upon the defendant.
The jury’s attention was drawn to the importance attached to the matter of the questions, and the court, having correctly ruled thus-far, surprisingly reversed itself, and permitted the question and the letter which are the basis of the first and third assignments of error. The persistency of counsel for the plaintiffs had its reward.
*67Porter and Hoyt were not casual onlookers. Their names, especially Porter’s, appear constantly in the evidence, as persons having familiarity with the subject of the controversy. Assumptions or conclusions of fact coming from such persons were calculated to strike with force the minds of the jury. So, we have from this entirely objectionable testimony the suggestion that Porter and Hoyt believed that the plaintiffs were entitled to commissions and that the defendant should pay them. I use the word “suggestion” in the sense that a strong argumentative inference of belief could, and no doubt was, drawn from this testimony.
Every trial lawyer of experience knows the interest displayed by a jury in a spirited contest over the admission of testimony with respect to an important issue. The most inattentive or somnolent juror becomes alert. The testimony is impressed strongly upon their minds; and when the court admits the testimony the jury is told, in effect, that they must and should consider it as having probative value.
Counsel for the plaintiffs were intent upon the objectionable matter being in evidence for two very substantial reasons, first for its supposed evidential value, second as a matter and basis for argument to the jury. The result was that there was testimony, oral and written, absolutely valueless as evidence, and so declared to be. in the opinion of the court, bearing upon a vital issue of the case, put before the jury with all the sanction of the court that they should give it consideration. The presumption is, of course, that the jury did give it consideration. 3 Am. Juris., Appeal and Error, 505.
The opinion of the court holds that, while there was error, it worked no injury. It is said that, disregarding the *68testimony and letter improperly admitted, there was ample evidence, both direct and circumstantial, of the relationship. of principal and agent between the plaintiffs and the defendant. The statement is followed by the arbitrary conclusion that the testimony could not have influenced the verdict.
The court’s conclusion is that the testimony and letter, strenuously insisted upon by the plaintiff as having probative value and admitted by the court over proper objection, testimony directed to the heart of the controversy, doubtless commented upon forcefully to the jury', and presumptively considered by them, was, after all, harmless.
The plaintiff realized the help of it. The defendant knew its hurt. The court, by its ruling told the jury it was evidence fit to be considered. For what reason may it be supposed that the jury disregarded that which the court said they might and should consider? And why, it may be asked, should it be supposed that a jury of laymen would engage in a discussion of the precise meaning of the word “assume” ?
This court evidently holds that the use of the word, “assume” meant nothing more than “if,” or “in case”; that Porter’s testimony and the letter necessarily conveyed that thought only to the jury, and, therefore, it was necessarily harmless. The answer is, I think, that counsel for the plaintiffs did not so regard the testimony, nor did the trial court. The testimony was admitted for the reason that it was considered to have probative effect, and no one can say that it had no harmful effect.
The evidence characterized by the court as “ample,” is said to be both direct and circumstantial. The direct evidence is almost entirely that of Nelson and Richards, the two plaintiffs. Nelson described himself as a financial *69agent. Richards gave his occupation as that of a private banker engaged in various kinds of business and financing. Nelson had known Shaughnessy. Richards met him for the first time on August 25th, 1933, in Montreal, and then and there, according to Richards, Shaughnessy agreed to employ him, an entire stranger, as the exclusive agent for the sale of the whiskies of the defendant company, or for the shares of stock of the defendant company held by Sir Mortimer Davis, Inc.
It would seem to be a just conclusion that these plaintiffs were persons of reasonable experience, knowledge, judgment and acuteness, and that they were reasonably conversant with corporations find the powers of corporate executives. Both being financial agents and men of affairs it is not unreasonable to suppose that they recognized the importance of a writing or memorandum confirmatory of an oral agreement, especially where the agreement was concerned with an exclusive agency involving many millions of dollars. Yet the record discloses the spectacle of two experienced persons, one of them saying that they both were chosen as exclusive agents, the other that he alone was. selected as exclusive agent, to effect the sale of whiskey amounting to millions of dollars, or the stock of Sir Mortimer Davis, Inc., vested in three executors of which Shaughnessy was one only, proceeding with an agency with no confirmation in writing, and no compensation agreed upon.' Business men do not act in a manner so nonchalant. This was the direct testimony of the creation of the relation of principal and agent. The jury, of course, could have believed it. But it was not testimony carrying with it conviction by reason of its inherent probability. It was, on the other hand, suspicious testimony and, in and of itself, was entitled to little weight.
The circumstantial evidence consists of meetings at *70which Richards attended and correspondence between the plaintiff and the President of the defendant company. And, says the court, whatever some of the letters of Richards standing alone might indicate as to the scope of the alleged agency, it cannot be denied that Richards was permitted to attend some of the meetings between Porter and Shaughnessy at which details culminating in the execution of the contract for the sale of the whiskey were discussed.
It is desirable that the precise ground upon which the action was founded be kept in mind. The suit was to recover commissions alleged to be due for services rendered in the sale or marketing, and in the procuring the sale or marketing of 8,000,000 gallons of whiskey of the value of $50,000,000. The Bill of Particulars so states.
The plaintiff testified that the agency was with respect to the sale of the whiskey or the controlling stock interest in the defendant company, which interest was held and owned by a corporation known as Sir Mortimer Davis, Incorporated. The shares of this latter corporation were held by the executors of the last will and testament of Sir Mortimer Davis.
Lord Shaughnessy testified that at the meeting with Nelson and Richards in August in Montreal the discussion was concerning the stock of the defendant company held by Sir Mortimer Davis, Inc., and that no price was fixed for the whiskey.
The fact of the creation of the relationship of principal and agent precisely as it was relied upon as a basis for the action is, of course, the vital issue. An examination of the correspondence is both proper and necessary.
, The first letter was one from Nelson to Shaughnessy in his connection with Consolidated Distillers Corporation. It is dated June 27, 1933. In it Nelson stated that he had *71a group that were prepared to buy for cash bonded warehouse receipts covering rye and bourbon whiskies in bond, which they understood covered whiskies over seven years old, and amounting in quantity to over 8,000,000 gallons. Prices were asked. To this Shaughnessy replied by telegram saying that any proposition from substantial people would be considered. This was followed by Nelson’s letter saying that his friends were a group of Democrats with ample capital. This was followed by a meeting with Shaughnessy in New York at which Nelson would not disclose the names of his friends or group. Nelson then went to Montreal to see Shaughnessy taking with him one Higgins. Nelson admits that Higgins was not able to satisfy Shaughnessy as to his financial responsibility, so he passes out of the picture. Richards enters upon, the scene through Nelson. Nelson testified that he told Shaughnessy who Richards was, and who he understood his friends and associates to be, and that he thought Richards was a likely person to find a purchaser either for the whiskey or for the stock of the defendant company which was owned by Sir Mortimer Davis, Inc. So, on August 22, 1933, Nelson wrote to Shaughnessy, as President of Sir Mortimer Davis, Inc., enclosing a letter from Richards. This letter was addressed to Nelson. It stated that Richards had thoroughly responsible people considering making a bid for the outright purchase of the entire holdings of the Estate of Sir Mortimer Davis, which, as he understood, represented control of the defendant company’s stock.
On October 19, 1933, Nelson sent to Shaughnessy an unsigned letter expressing his failure to understand his reluctance to meet Porter, who was President of National Distillers Products Corporation, a “paramount” person in the industry. This letter was concerned with the stock of the defendant corporation held by Sir Mortimer Davis, *72Inc. A proposal of Richards is mentioned indicating a plan calling for the formation of a corporation, and the exchange of cumulative and redeemable preferred stock, plus a bonus of common stock, for the shares of stock of the defendant company held by Sir Mortimer Davis, Inc. This letter was addressed to Shaughnessy as President of Sir Mortimer Davis Estate, Inc.
On August 25, 1933, just after the Montreal conference, at which the plaintiffs say the agency was created, Richards addressed a letter to Shaughnessy, as President of Sir Mortimer Davis, Inc., thanking him for a pleasant visit, and stating that he was proceeding along the lines “we discussed.”
The next letter of Richards was of August 31st. It likewise was addressed to Shaughnessy as President of Sir Mortimer Davis, Inc., and referred directly and solely to the sale of the stock of the defendant company belonging to the estate. This letter referred to negotiations for the sale of .the stock through a representative of Lady Davis, and Richards wanted Shaughnessy to write him that both he and Lady Davis were negotiating through him.
On October 9, 1933, Richards wrote Shaughnessy, still addressing him as President of Sir Mortimer Davis, Inc., outlining a plan discussed with Porter concerning the controlling interest in the defendant corporation. ,
The plan embraced the formation of an American corporation to be controlled, financed and operated by National Distillers Corporation of America, and an exchange of stock of the defendant company held by Sir Mortimer Davis, Inc., for a proportion of the preferred stock of the corporation to be formed.
Richards testified that Shaughnessy was insisting upon *73some payment for the benefit of the Davis estate and that Porter said “Well, $250,000 won’t stand in the way.” So the next Richards letter, dated October 13, 1933, informed Shaughnessy that the matter of $250,000 would not stand in the way of a deal. This letter, as was customary, was addressed to Shaughnessy as President of Sir Mortimer Davis, Inc.
On October 18, 1933, Richards addressed a letter to Shaughnessy, still as President of Sir Mortimer Davis, Inc., stating that he had had a meeting with Porter and suggesting a conference in New York.
The next letter from Richards to Shaughnessy was dated October 27. It referred to a visit that Shaughnessy was to make to New York, and in it Richards invited Shaughnessy to be his guest at wrestling matches. Business affairs were not mentioned, and the letter was addressed to Shaughnessy personally.
Shaughnessy went to New York on November 1. Richards testified that he took him to Porter’s office on the following morning, and there a conference was held between Shaughnessy, Wright, Vice-President of the defendant company, Porter, himself and Mr. Breede, a lawyer.
According to Richards he introduced Porter to Wright as strangers. But Shaughnessy, Porter and Wright deny this, and it appears without contradiction that Porter and. Wright had been conferring for some months with respect to the very plan that was finally carried into execution.
Richards testified that Shaughnessy said that the plan of the exchange of stock was not practicable, and that then the conversation “drifted on to the matter of this third company;” that no price was established, and that he attended no further conferences.
*74So far then, we have the clearly painted picture of an abortive plan to take over the stock of the defendant company held by Sir Mortimer Davis, Inc., by an exchange of the stock for stock in a company to be formed. This proposed plan collapsed at this meeting. It is not denied that it had been found impossible to find the money with which to purchase the stock, or the whiskey.
As Richards says, the conversation between Shaughnessy and Porter then drifted to the formation of a third company, a marketing company. This plan had been discussed between Wright and Porter for several months, and with respect to which a memorandum had. been reduced to writing in May, 1933.
Richards’ next letter was dated January 5, 1934, after an agreement had been concluded between the defendant corporation and Porter’s Company, National Distillers Products Corporation, providing for the formation of the marketing corporation. This letter, quite significantly, was addressed to Shaughnessy as President of the defendant company, and in it Richards wanted to know what provisions had been made for his compensation for having originated the business, arranging the negotiations and for introducing the particulars. Nelson’s name was not mentioned.
To this letter Shaughnessy replied, stating that so far as he knew no compensation had been arranged for any one. He referred to the original discussion concerning a proposed plan relating to the acquisition of shares of Sir Mortimer Davis, Inc., which as he said, for various reasons had to be abandoned; that Porter had taken up with Wright (Vice-President of the defendant corporation) a situation which had been discussed for many months, and that the negotiations had continued on that basis ever since. He said that he did not want Richards to labor under any *75misapprehension as to his relationship, for at no time was the defendant corporation interested in paying commission or compensation of any description.
On the same day Richards wrote Porter asking him what provisions had been made for his compensation, and to this Porter replied by the letter which the plaintiff finally succeeded in getting before the jury, the admission of which the court rightfully holds to be error.
The testimony strongly points to the conclusion that Richards and Nelson had failed to find a buyer for the whiskey or for the stock control of the defendant company. Their plan, or Porter’s plan, strongly recommended by them, for the formation of a third company, and an exchange of shares of the defendant company owned by Sir Mortimer Davis, Inc., for shares of the new company, fell through for the very good reason that the executors of the Davis estate would not be justified in exchanging shares which had a market value for shares in a corporation to be formed. They had failed in their efforts, and when at the conference on November 2, Shaughnessy pronounced the plan for exchange of shares impracticable, and, as Richards himself testifies, the conversation turned to the formation of a marketing company with which Richards was not concerned at all, it is not surprising, I think, that Richards was not invited to attend further conferences.
It was after this conference that, according to Nelson, Shaughnessy said, “Jim, this will make you and Ernest independent for life,” and, according to Richards, “Ernest, I will see that you are taken care of for life.”
A doubt may be permitted whether the plaintiff’s testimony is “ample” in the sense that it carries conviction.
We may pass over with bare mention Richards’ want of candor as disclosed by his cross-examination. It will be *76recalled that in his letter of August 22 to Nelson which was handed to Shaughnessy, there was the statement that he had thoroughly responsible people considering making a bid for “the - outright purchase of the entire holdings of Sir Mortimer Davis.” The cross-examination developed that at that time he represented no one, responsible or otherwise.
The testimony introduced by the defendant may not be ignored, for the admitted error cannot be determined to be prejudicial or non-prejudicial from a consideration of the plaintiffs’ testimony alone.
Shaughnessy testified, and it was not denied, that Nelson first introduced Higgins as a buyer of some of the whiskies, but that it developed that Higgins had no capital and wanted to pay for the whiskey out of the profits he might make. Then came Murphy, but it was found that not “much cash could be expected from that source.” Then Nelson pretended to represent Banc America Blair Corporation, but it was found that it was “not particularly interested, and that fell through.” Then Richards appeared on the scene sponsored by Nelson.
Shaughnessy denied that he had ever appointed Nelson and Richards as sole agents for the sale of the whiskey or for the shares of stock. He denied that at the first Montreal interview there was any discussion respecting the sale of the whiskey as merchandise, or that any price therefor was fixed. He testified that his company had perfectly good selling agencies and did not require the services of a stockbroker who probably had no experience in the whiskey business to sell his whiskey. He admits, as they were brokers, considering discussing with them the sale of the shares of stock, if they had substantial people behind them.
The Richards correspondence was concerned with the *77stock held by Sir Mortimer Davis, Inc. Nelson’s letters point in the same direction. He wrote Shaughnessy, on July 8, inquiring if he would consider disposing of the stock interest of the Davis estate in the defendant corporation to a responsible banking group. On July 27, he telephoned suggesting that he represented Banc America Blair Corporation and inquiring specifically what amount of additional stock could be escrowed, optioned, or purchased. On August 2, he wrote at length to Shaughnessy stating that his proposition to the chairman of Banc America Blair was “to purchase outright the entire holdings of the Estate at $26.00 per share.” There was also in evidence a telegram from Nelson to Shaughnessy, dated July 24, asking when the latter could meet “my people here with complete information about sale of control.”
The correspondence, both Nelson’s and Richards’, tends to confirm Shaughnessy’s contention. Apart from the testimony of the plaintiffs themselves there is little or no testimony of services rendered in selling or marketing, or procuring the selling or marketing of whiskey. The conferences and meetings at which Richards was “permitted” to attend are explained not only by the defendant’s testimony, but by the plaintiff’s own correspondence as being conferences at which the sale of the stock of the Davis estate was discussed.
Apart from the simple affirmative answer of Porter to an exceedingly leading question, “As a matter of fact, Mr. Porter, up until the time that Mr. Richards got into this situation no arrangement had been made with Canadian Industrial Alcohol Company, Limited, and it was not until he got into it that the arrangements were carried through, isn’t that so?” there is practically no disinterested testimony in support of the case of the plaintiffs.
It was undisputed, as Porter testified, that his company, *78National Distillers Products Corporation, had been in negotiation with officers of the defendant company concerning a possible purchasing or marketing arrangement for the defendant’s product since the latter part of April, 1933; that, of course, nothing could be done until the accomplishment of the repeal of the Eighteenth Amendment; that it seemed impossible to carry through a straight purchase of the whiskey or the stock control because of the vast amount of money involved; and that when Shaughnessy first went to see Porter, on October 3, Porter’s company had been in negotiation with the defendant company for some months. Porter testified that his company was familiar with the defendant’s whiskies, and the whole situation, and that, in April there had been discussions between himself and an officer of the defendant corporation concerning the practicability of an agreement for the formation of a marketing corporation, and a contract similar to the one ultimately entered into, and that these discussions had never ceased.
Having in mind Richards’ inquiry as to what provisions had been made for his services in “having originated the business,” it may be permitted to inquire just what business Richards did originate?
The jury could, of course, deal with the testimony as they pleased, but, considering the testimony as a whole, . there is no justification, in my opinion, for the court’s conclusion that the evidence on the part of the plaintiff was so convincing that the admitted error worked no injury.
The court has laid down no rule for the determination of prejudicial error. It states in one place in its opinion that there was ample evidence, both direct and circumstantial of the existence of an agency agreement between the parties. What is meant by “ample” evidence in con*79nection with admitted error, I do not understand. The court cannot mean that where there is evidence upon which a verdict may be based the erroneous admission of testimony on a vital issue cannot be prejudicial. That sort of rule, satisfying as it may be to a trial court, is neither just nor reasonable. If the court meant to say that, apart from the testimony erroneously admitted, there was evidence of such convincing character that the verdict could not have been otherwise than it was, the answer is that the record does not bear out the conclusion.
It is easy to say that evidence improperly admitted could not have influenced the verdict, but the ability to penetrate the minds of others is not, I think, a human attribute.
There are cases, admittedly, where the evidence is so conclusive, or so preponderating, that the erroneous admission of testimony could not reasonably change the result. There are many cases where it is connected with an issue so immaterial that it has no significance. I am quite in agreement that there must be both error and injury. I am not proposing, in the phrase of Professor Wigmore, an exaltation of the rules of evidence. I am not wedded to the theory that error presumptively works prejudice to the party against whom it is committed, or to the theory that the admission of incompetent or irrelevant testimony is a violation of a legal right and, therefore, is fatal error. A rule that a new trial should be granted in every case where testimony has been erroneously admitted would be clearly unjust. On the other hand, since it is often difficult, and sometimes impossible for an appellate court to determine the effect which improper testimony may have on the minds of a jury, there are serious objections to a practice which permits speculation on the subject. 6 Jones, Ev., § 2531.
I quite agree that there is no prejudice from the ad*80mission of improper testimony where other competent evidence is uncontradicted or overwhelming, 6 Jones, Ev., § 2532; but, where the issue is vital and sharply contested, turning upon a question of fact as to which the evidence is in direct conflict and consisting principally of the testimony of the parties themselves, each in support of his own claim, a reviewing court ought not arbitrarily to conclude that improper testimony could have worked no injury. In such case the admission of irrelevant or incompetent testimony is almost necessarily harmful. 6 Jones, Ev., §§ 2532, 2533; 4 C. J. 972, 999; Missouri, K. & T. Ry. Co. v. Williams, 63 Tex. Civ. App. 368, 133 S. W. 499; Louisville & N. R. Co. v. Cornelius, 183 Ala. 203, 62 So. 710; Pratt v. Hamilton, 161 Mich. 258, 126 N. W. 196; McIntosh v. McNair, 53 Or. 87, 99 P. 74; Houston, etc., R. Co. v. Fox, 106 Tex. 317, 166 S. W. 693; Broadwell v. Conover, 186 N. Y. 429, 79 N. E. 402.
Chief Justice Shaw, in Thorndike v. City of Boston, 1 Metc. (Mass.) 242, laid down what Mr. Jones says is a conservative rule by a great judge. It is,
“When evidence has been improperly received or rejected, and a verdict is found against the party taking the exception, and a motion for a new trial is made tin that ground, such motion will not be granted, if the court can see plainly, from the whole evidence, that independently of the evidence received or rejected, the evidence in support of the verdict so decidedly preponderates, that a verdict the other way would be set aside as against evidence.”
The New York Court of Appeals has announced this rule,
“When the evidence on each side is so nearly balanced that a determination either way would not be reversed upon appeal, it can-not be said that the losing party is not prejudiced by material evidence testified to by an incompetent witness against his objection.” In re Eysaman’s Will, 113 N. Y. 62, 20 N. E. 613, 616, 3 L. R. A. 599.
And, says Jones,
“So long as the chances are equal that it may have had some *81effect one way or the other, the party excepting is entitled to the . benefit of the principle that irrelevant testimony should be shut out from the jury.” 6 Jones, Ev., § 2533.
In 3 Am. Juris., Appeal and Error, 584, perhaps the latest general authority, it is said,
“Where there is such a conflict in the evidence that a determination either way would not be disturbed on appeal, it cannot be said that the losing party is not prejudiced by material evidence erroneously admitted.”
People v. Jose Gonzalez T. Fernandez, 35 N. Y. 49, is cited and quoted by Professor Wigmore apparently with approval (Wigmore, Ev., Vol. 1, § 21). There it was said,
“The reception of illegal evidence is presumptively injurious to the party objecting to its admission; but where the presumption is repelled, and it clearly appears, on examination of the whole record, beyond the possibility of rational doubt [Italics mine], that the result would have been the same if the objectionable proof had been rejected, the error furnishes no ground for reversal.”
I think it cannot be reasonably said, in view of the fact that the plaintiffs’ case rested largely upon their own evidence which was sharply controverted not only by flat and uncompromising denials but by reasonable inferences to be drawn from the plaintiffs’ own correspondence, that, if the verdict had been the other way, it could not have been supported.
Townsend v. Poynter, 3 W. W. Harr. (33 Del.) 53, 130 A. 267, cited by the court is, I think, of small authority. There the exception was based upon an improper and prejudicial remark of counsel for the plaintiff with respect to a witness for the defendant. The point as to which the witness testified was whether, when a collision happened, it was dark or light. His testimony was comparatively unimportant, as the court observed, and the defendant’s contention was amply supported by other evidence. Director General of Railroads v. Johnston, 1 W. W. Harr. (31 Del.) 397, 114 A. 759, and Philadelphia & R. Ry. Co. v. *82Green & Flinn, 2 W. W. Harr. (32 Del.) 78, 119 A. 840, are typical cases of harmless error.
Hudson v. State, 5 W. W. Harr. (35 Del.) 23, 156 A. 881, 80 A. L. R. 219, not cited in the court’s opinion, involved, not an erroneous admission of testimony, but improper comment by the prosecution upon the failure of the defendant to call character witnesses.
This court reversed the judgment of conviction. The court said that a jury of lawyers would probably not be influenced by the comments, but that it might be very different with a jury of laymen; that theoretically the jury is to be influenced only by the evidence, but they cannot be expected to know that the State has inj ected something into the case which is not in evidence, when the court says it is unobjectionable; and that the reputation of a person sometimes tips the scale in weighing the evidence, and cannot be said to be cured by the charge on reasonable doubt.
The court went on to say that it was a basic principle of criminal law that a defendant has the right to be confronted by the witnesses and has the right to cross-examine them.
The same reasoning should apply here. The objectionable testimony went before the jury with the approval of the court. The jury’s duty was to consider it as evidence. The presumption is that they did so. The testimony of Porter was by deposition. The defendant, of course, could not anticipate that the Porter letter would be allowed in evidence. It had no opportunity to cross-examine him upon the meaning of his statements, or, in any manner, to dissipate or lessen the force of them. The objectionable testimony may have tipped the scale. It is beyond human ability to say that it did not.
In the circumstances shown by the record the admitted *83error was, in my opinion, prejudicial, and the court is not justified, in fact or in law, in assuming that the error was harmless.
The twelfth assignment of error is based upon the refusal of the trial court to grant a new trial upon the ground that the verdict was excessive.
Considering all the facts and circumstances the verdict was grossly excessive. Conceding that the plaintiff’s efforts had something to do with the conclusion of the partnership arrangement between the defendant and the Products Corporation, the negotiations for which had been going on for months before they appear in the story, an award to them of a small fortune was unconscionable. It is easy to be liberal with other people’s money. It was the duty of the court below and, as I think, the duty of the court here, to correct a palpable injustice.
The judgment should be reversed.
An application for a reargument of this case was made by the plaintiff in error, but that application was refused by a majority of the court on November 10, 1936.