Munn v. Perkins ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

The point relied on for reversing the judgment in this cause, is, that the verdict is contrary to the evidence. There have been three concurring verdicts in favor of the plaintiff below, the defendant in this court; and it would savor of rashness, were this court to interpose and set aside the verdict. We are by no means convinced that the finding was contrary to the testimony. It was an action upon a warranty of soundness of a slave. The only evidence of the warranty, was a conversation which occurred between the parties in the presence of the witness some time after the exchange of negroes was-made, out of which the controversy grew. In that conversation, upon being told of the unsoundness of the negro and requested to take her back, Meek said that he was not in a situation to take care of her; but if Perkins would keep her, and she died, he would pay all expenses and it should be his loss. It is insisted that this was a promise without consideration, and that the jury could not properly make it the foundation of a verdict. The evidence, however, might be regarded by the jury as an acknowledgment by Meek of a previous liability on his part, and an admission that he was bound by the original contract to do what he then promised he would do. In this view, it was not a promise creating a new liability, but an act recognizing an old one, and not requiring any new consideration to support it. The conversation would readily admit of that construction, and would thus entirely justify the finding.

But there is another reason why we cannot reverse the judgment, and grant a new trial in this case. Our statute enacts “ that no more than two new trials shall be granted to either party in the same cause.” How. & Hutch. 616. The plaintiff in error has already had that number. At common law, it would only have been in a very extraordinary case, that any court would have granted more than two. Graham on New Trials, 641-2. We will not say, that, since the statute, a court would, in no posible case, be justified in setting aside a third verdict; it may be that when they have been obtained by misdirection on the part of the court, the error, in point of law, might still be corrected. See 10 Yerger, 499. But this is not a case of that kind.

We therefore affirm the judgment.