The only question arising on this appeal is whether the trial court erred in granting the plaintiff's motion for a new trial on the ground that the verdict was against the evidence. The motion was based on somewhat unusual grounds, which may be stated as follows. The main issue presented by the pleadings was whether the material delivered to and paid for by the plaintiff, together with that remaining undelivered in the hands of the defendant, was such as the contract Exhibit A called for. The determination of that question was left to the jury upon conflicting evidence; and on this record it must be assumed, for the purpose of this appeal, that there was evidence upon which the jury might properly have decided either (a) that the material delivered and paid for was not according to contract; — in which case their verdict should have been for the plaintiff to recover *Page 506 the amounts paid by it for the five carloads received; or (b) that the material was according to contract; — in which case their verdict should have been for the defendant to recover on its counterclaim for damages for the plaintiff's refusal to accept and pay for the undelivered balance of the material contracted for.
The jury found the issues for the defendant and assessed the damages at $5,421.87; and the plaintiff's contention, that the verdict is against the evidence, was and is limited to a claim that the defendant's damages — if it was entitled to any — were so definitely liquidated by undisputed evidence in the sum of $15,796.43, that a defendant's verdict for only $5,421.87 necessarily shows that the jury must have found that the defendant was not entitled to any damages at all; that is, the jury must have found that the material delivered to and paid for by the plaintiff was not according to contract.
The trial court set aside the verdict, but its memorandum indicates that it did not do so precisely on the ground suggested by the plaintiff. It agreed that the defendant's damages had been liquidated in advance in the above-named amount, but pointed out that the verdict might be understood as establishing either one of two alternative propositions: (1) that the jury found that the material delivered to and paid for by the plaintiff was not according to contract, but nevertheless rendered a verdict for the defendant; (2) that the jury found that the material so delivered, and the balance remaining undelivered, was such as contracted for, but nevertheless found for the defendant in a sum much less than the defendant was entitled to recover. And the court held that upon either hypothesis the verdict was against the evidence. In so holding we think the court was in error.
In the first place, it is quite clear that if either of *Page 507 the alternative propositions stated is to be regarded as established by the verdict, it must be the latter. The verdict finds the issues for the defendant, and it is not capable of any other construction. It must, therefore, stand or fall as a defendant's verdict for the sum named therein; and then, assuming for the moment that the defendant's damages were liquidated in advance at a fixed sum three times larger than the amount of the verdict, the question is whether the plaintiff was entitled to a new trial on that ground. The law seems to be well settled. "A new trial for inadequacy of damages will not be granted on the application of the parties against whom they are awarded." Cormier v. Martin Lumber Co., 98 Wash. 463, 468,167 P. 1105. "Appellant is not entitled to a new trial upon the ground that the appellee ought to have recovered more or nothing." Wright v. Griffey, 44 Ill. App. 115,117. "But if the jury gave the plaintiff less than he was entitled to recover, upon the finding of the issues, that is an error of which the plaintiff, alone, can complain. If he submits to the verdict, the defendant cannot be heard to insist that it shall be set aside because it is unjust to the plaintiff." Wolf v. GoodhueFire Ins. Co., 43 Barb. 400, 405, affirmed 41 N.Y. 620. "The defendant cannot be said to have been injured because compelled by the verdict to pay a less sum than he contracted to pay." Alderman v. Cox, 74 Mo. 78,79. "Appellant cannot take advantage of the fact that a verdict and judgment against him is for an amount less than was established by the proof." Smith v. Railroad Employees Development Co. (Texas),195 S.W. 220. See also 29 Cyc. 848, note 17.
In the case at bar there was, as already pointed out, evidence to support a verdict for the defendant, and hence it must be admitted that if the verdict had been for the full amount of the damages proved by the defendant, *Page 508 there would have been no possible ground for setting it aside. That being so, it seems clear upon principle and authority that the plaintiff ought not to escape the adverse finding on the main issue of liability, solely on the ground that the jury erroneously or intentionally let it off too easily in assessing the damages. If the damages were so grossly inadequate as to show that the jury must have disregarded the evidence and the instructions of the court, they should have been returned to a second consideration under proper instructions. Sheffield v. Beckwith, 90 Conn. 93,96 A. 316. Failing that, the defendant might have moved for a new trial for inadequacy of damages. But since the defendant preferred to submit to the inadequate verdict, rather than to relitigate the issues, we see no reason why it should not be allowed to do so.
It is, moreover, apparent from the evidence, that the defendant's damages — if any — were not necessarily liquidated in advance at a fixed sum. The amount realized by the defendant on the resale of the unaccepted balance of the material was undisputed; but it does not follow that on the whole case the defendant must have been entitled to recover that amount, or nothing. There was, for instance, testimony from which the jury might have found that the material delivered to and paid for by the plaintiff, although of the kind and quality contracted for, was mixed with a greater or less percentage of separable dirt and foreign materials, all of which were weighed, charged to and paid for by the plaintiff as brass scrap at the rate of ten cents a pound. Some of the plaintiff's letters make the claim that it has been overcharged by the defendant "billing dirt as brass"; and the court charged the jury on this point, saying: "Just how much of foreign material does it contain, just how deleterious the effect of it would be on the melted *Page 509 product, and just how much of it is dirt and how far it reduces the quantity of metal which the plaintiff is required under the contract to pay for. All this is proper for you to decide."
Again, the resale by the defendant was made on a falling market, and the jury may not have been satisfied that the defendant got the best price which it might with reasonable diligence have obtained.
On this state of the record it cannot be said that the defendant was in law entitled to any particular amount of damages. The undisputed figures realized on the resale should have been taken by the jury as a starting point for the calculation of the defendant's damages, when they found the issues for the defendant. But no rule of law required them to give the defendant the whole difference between the sum realized on the resale and the unpaid balance of the contract price for the same weight of material. Their failure to do so did not make the verdict contrary to law, although it may have made the verdict inadequate in amount; but if so, the defendant was entitled to submit to that injustice and to retain the fruits of its victory on the main issue of liability.
There is error and the cause is remanded with direction to enter judgment for the defendant on the verdict.
In this opinion the other judges concurred.