Dayton Folding Box Co. v. Danciger Bros. , 138 Mo. App. 17 ( 1909 )

ELLISON, J.

— Plaintiff’s petition in this cause was in two counts, one for contract price of goods, wares and merchandise, and the other on quantum meruit. The verdict was for the plaintiff on the latter count. Defendants filed motion for new trial which the court sustained and plaintiff has appealed from that order.

It appears that after the instructions had been read and the case argued, the jury had been in their -room for about two hours without announcing an agreement on a verdict, the court sent for them when the following took place: The court “asked the jurors if they had been able to agree on a verdict and they said ‘No.’ The court thereupon asked them if there was any prospect of their being able to agree, and several of the jurors said that they lacked one of being able to agree. Thereupon the court said to them: ‘Gentlemen, are you aware that it is not necessary that you should find the full contract price of these goods?’ Several of the jurors answered ‘No.’ The court then said that they might read instruction No. 3 upon that subject. Thereupon some of the jurors said they thought they could agree.”

Instruction No. 3, referred to by the court, was the instruction informing the jury that they could find against plaintiff on the contract and yet, though the goods were not as they should have been under the contract, if defendants kept them the jury could find for plaintiff under the second count what they believed to be the reasonable value of the goods.

Considering the character of case in connection with, the trial court’s oral statement to the jury, such statement was clearly subject to be interpreted as meaning that the court advised a verdict for the plaintiff, and the court was manifestly right in granting the new trial.

The defendants objected to the court’s remarks and assigned that as one of the grounds in the motion for new trial, but no express exception was taken. ' From this failure to except plaintiff insists that the court’s action cannot be considered. We think an exception not necessary where the court granted the party’s prayer for a new trial. The court had authority of its own motion to order a new trial if, in its sound discretion, it believed, on sufficient ground, the province of the jury had been invaded.

If the court had overruled the motion and the defendants had appealed it might be said that they could not complain since they had not excepted, but that is not this case.

The judgment is affirmed.

All concur.